Common Cause/N.Y. v. Brehm

Decision Date10 January 2020
Docket Number17-CV-6770 (AJN)
Citation432 F.Supp.3d 285
Parties COMMON CAUSE/NEW YORK, as an Organization and on Behalf of its Members, Plaintiff, v. Robert A. BREHM et al., Defendants.
CourtU.S. District Court — Southern District of New York

Anna Do, Dechert, LLP, Los Angeles, CA, Hilary Bonaccorsi, Dechert, LLP, Boston, MA, Katherine Shorey, Dechert, LLP, Jackson Chin, Puerto Rican Legal Defense and Education Fund, Inc, Jose-Luis Perez, Latinojustice Prldef, Richard Flannery, Tharuni Jayaraman, Neil A. Steiner, Dechert, LLP, New York, NY, Ezra D. Rosenberg, John Powers, Pro Hac Vice, Ryan Snow, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for Plaintiff.

Brian Lee Quail, William J. McCann, Jr., New York State Board of Elections, Albany, NY, Nicholas Robert Cartagena, Lonstein Law Office P.C., Ellenville, NY, for Defendants.


ALISON J. NATHAN, District Judge:

Common Cause brings this action against the New York State Board of Elections, its Co-Executive Directors, and its Commissioners seeking declaratory and injunctive relief for alleged violations of the National Voter Registration Act and the fundamental right to vote contained in the Fourteenth Amendment. Common Cause challenges two of New York's election practices. First, the State regularly removes voters from active status and places them on inactive status if it believes that the voter has moved. The names of these inactive voters, however, are not provided to poll workers at polling locations. Second, the State prohibits inactive voters from voting by regular ballots, and instead requires them to vote using affidavit ballots.

In October 2019, the Court conducted a four-day bench trial on these claims. The Court concludes that the former practice violates the Equal Protection Clause because it burdens all New York voters but serves no legitimate state interest. The latter practice does not violate the Constitution, however, because it advances several legitimate interests. The Court also concludes that Common Cause has identified three violations of the National Voter Registration Act. The Court therefore ORDERS the Defendants to provide the names of inactive voters registered to vote in a particular election district to the poll workers of that election district.

This Opinion and Order constitutes the Court's findings of fact and conclusions of law for purposes of Federal Rules of Civil Procedure 52(a)(2) and 65. To the extent any statement labeled as a finding of fact is a conclusion of law it shall be deemed a conclusion of law, and vice versa.

A. New York's Voter-Registration Process

States regulate both state and federal elections. "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." U.S. Const., art. I, § 4. Though states enact vastly different rules governing elections, one thread is common: all states require voters to vote in the election district in which they reside. Our system of representative democracy is predicated on this rule; only those who reside in a geographic area should be able to choose its representatives. Trial Transcript (Tr.) at 311.

The dispute in this case arises out of a persistent problem faced by states in achieving this goal: voters move, and they do so often. "[M]ore than 10% of Americans move every year." Husted v. A. Philip Randolph Inst. , ––– U.S. ––––, 138 S. Ct. 1833, 1838, 201 L.Ed.2d 141 (2018) (citing Census Bureau data). In designing their voter-registration systems, states must account for this voter movement. But when many residents move, they do not update their voter registration. Indeed, "about 2.75 million people are said to be registered to vote in more than one State." Id. If a voter moves and does not update her registration, she could, in theory, continue to vote at her original address even though she no longer lives there. Both federal and state laws thus require states to use proxies to identify voters who may have moved. Once identified, states often change these likely movers' registration status and require them to take additional steps before casting a regular ballot again. The problem, however, is that those proxies can be overinclusive, capturing voters who have not moved. Both the federal government and states are wary of using too strong a medicine—if states design a system that is overly inclusive, they may disenfranchise voters who remain in the same location.

New York has developed its own procedures to regulate this process. The details of the State's approach are laid out in Section II.A. In short, New York performs this voter list maintenance by using several proxies to determine which voters have moved. It then renders those voters inactive and requires them to cast affidavit ballots (what other states call provisional ballots).

B. Procedural History

Common Cause claims that New York's list-maintenance procedures violate both the fundamental right to vote, contained in the Equal Protection Clause, and the National Voter Registration Act (NVRA). On September 6, 2017, Common Cause filed suit against the New York State Board of Elections and various state officials, seeking both declaratory and injunctive relief. Dkt. No. 1. Two months later, New York moved to dismiss. Dkt. No. 36.

On September 30, 2018, the Court granted the motion to dismiss in part and denied it in part. Dkt. No. 58. The Court's Opinion made several key conclusions. First, the Court held that Common Cause had met its burden at the motion-to-dismiss stage to demonstrate standing. Second, the Court narrowed the scope of Common Cause's statutory claim. It dismissed the facial statutory challenge, finding that New York's procedures as written did not violate the NVRA. However, the Court did not dismiss Common Cause's as-applied statutory challenge, finding that even though New York's regime facially complied with the NVRA, the State could still violate the statute by not following its strictures in practice. The Court did not address Common Cause's constitutional claim. The as-applied statutory challenge and constitutional challenge are thus the remaining claims in this case.

The Court held a four-day bench trial on these two claims in October 2019. Following the bench trial, the parties submitted memoranda of law and proposed findings of fact. Dkt. Nos. 179-84.


The Court turns first to its findings of fact from the extensive trial record.1 The key findings of fact are as follows: (1) tens of thousands of New York voters are improperly registered to vote as inactive, even though they continue to reside at their address of registration; (2) this problem results from errors in two of New York's proxies for voter movement, data from the United States Postal Service and a national registry; (3) affidavit balloting causes substantial delay, for inactive voters specifically and all New York voters generally; (4) the State erroneously rejects some affidavit ballots; (5) a supplemental list of inactive voters kept at polling locations would alleviate some of these problems; and (6) Common Cause diverted resources as a result of the New York laws at issue in this case.

A. New York's Election Apparatus

The Court begins with some background regarding how New York administers elections. The New York State Board of Elections implements state-wide regulations and defines the state's election policies. Plaintiff Reply Findings of Fact (FIF), Dkt. No. 183, at 23-24. Defendants Robert Brehm and Todd Valentine are the State Board's Co-Executive Directors. Defendant Thomas Connolly is the State Board's Director of Operations.

The State Board delegates much of its authority to sixty-two County Boards of Election. Each county in New York has its own Board. The State Board supervises and supports these County Boards. Def. Ex. B., Connolly Decl., at 22. For example, the State Board sets the contours for how County Boards should process affidavit ballots, perform list maintenance, and run a poll site. Id. ; Pl. Reply FIF at 24-25 (discussing guidance provided by the State Board to County Boards). And the State Board supports the County Boards by hosting conferences and providing resources. Pl. Reply FIF at 25. But the County Boards administer elections themselves. The County Boards therefore test and deploy voting equipment, organize training for poll workers, conduct early voting, prepare poll books, and manage voting locations on Election Day. Pl. Ex. 263, Ryan Dep., 19:18-20:19, 41:22-45:24. The County Boards employ more than sixty-thousand poll workers per election; New York City alone employs about 30,000 per election. Pl. Reply FIF at 21; Ryan Dep. at 39:17-40-20. The County Boards have substantial discretion in administering elections, and their policies are far from uniform.

Each of New York's counties are further divided into election districts, which are "the basic political subdivision for purposes of registration and voting." N.Y. Elec. Law § 4-100 ; Pl. Ex. 263, Ryan Dep., 22:25-26:2. New York has about 15,000 election districts. Pl. Reply FIF at 21. Election districts have poll sites, and a voter can vote only at the poll site associated with that voter's residence. Id.

B. New York's List-Maintenance System

All states require voters to register in some way. And as discussed above, all states have procedures to deal with potential mismatches between a voter's actual address and the address of registration. New York residents must register to vote at least 25 days before an election. N. Y. Elec. Law § 5-210. Once they register, they are listed as an active voter. Assuming they continue to satisfy various criteria not relevant here, and the State receives no information suggesting that the voter has moved, the voter will remain in active status. That means the voter will continue to be listed in the poll book kept at polling locations. See Pl. Reply FIF at 21 (defining a poll book...

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