Common Cause/New York v. Brehm et al

Filing 185

FINDINGS OF FACT AND CONCLUSIONS OF LAW: The Court concludes that New York's refusal to provide inactive lists at polling locations violates the Equal Protection Clause. The State is therefore ordered to provide the names of inactive voters r egistered to vote in a particular election district to the poll workers of that election district. The Court further concludes that the State's affidavit-ballot process does not violate the Fourteenth Amendment. And the Court identifies three discrete voters as to whom the State violated the National Voter Registration Act. In its Amended Complaint, Common Cause requested the award of "the costs and disbursements incurred in connection with this action, including, without limitat ion, their reasonable attorneys' fees, expenses, and costs." Dkt. No. 72 at 18. If Common Cause continues to seek this award, it is ordered to detail its expenses and submit letter briefing justifying its request no later than three weeks from the date of this Order. The State may submit its briefing regarding Common Cause's request no later than three weeks after that. Common Cause may then submit a reply no later than one week after that. The Court retains jurisdiction to m onitor the State's compliance with the terms of this Order. The Clerk of Court is respectfully ordered to enter judgment. This also resolves Dkt. No. 144. SO ORDERED. (Signed by Judge Alison J. Nathan on 1/10/2020) (jca) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Common Cause/New York, as an organization
and on behalf of its members,
Plaintiff,

-vRobert A. Brehm et al.,

17-CV-6770 (AJN)
FINDINGS OF FACT
AND CONCLUSIONS
OFLAW

Defendants.

ALISON J. NATHAN, District Judge:
Common Cause brings this action against the New York State Board of Elections, its CoExecutive 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 oflaw it shall be deemed a conclusion oflaw, and
vice versa.

I.

BACKGROUND
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., 138 S. Ct. 1833, 1838 (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
2

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
3

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.

II.

FINDINGS OF FACT
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 ofNew 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.

1 There

is one evidentiary dispute that the Court has yet to resolve. The parties dispute the admissibility of
Plaintiffs Exhibit 196, a declaration from voter James W. Johnson Jr. Johnson stated in his declaration that when
he went to vote in 2016, his name was not listed on the active list, and he was forced to cast an affidavit ballot. Pl.
Ex. 196 ,i,i 6-13. He later received a letter from the State informing him that his affidavit ballot was counted. Id.
if 17.
Johnson passed away at some point after he provided the declaration but before the trial began. Tr. 385:718. The State argued that this exhibit was inadmissible because it lacked the opportunity to cross-examine Johnson
at trial. The Court overrules the State's objection and deems the exhibit admitted under Federal Rule of Evidence
807. The out-of-court statements in the declaration are "supported by sufficient guarantees of trustworthiness."
Rule 807(a). The State has provided voting records for other voters, showing when the individual registered, voted,
and was removed from the active registry. The State had access to the same information for Johnson, yet it did not
argue that any of his statements were inaccurate or untruthful. And the State was given "reasonable notice of
[Common Cause's] intent to offer" the exhibit and had ample "opportunity to meet it." Rule 807(b). Indeed, the
State expressly declined to depose Johnson. See Dkt. No. 151 Ex. C ("After reviewing the affidavits you submitted
[including Johnson's], we are ok with foregoing deposing them."). The exhibit therefore satisfies the residual
exception in Rule 807 and is admitted into evidence. The Court however does not rely on the Johnson Declaration
in reaching its decision.

4

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 Deel., 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.
5

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 as "a list of active voters for the election district with signature exemplars
which the voter signs to receive a ballot.").
The County Boards regularly send voters several types of mail: Once a year, they send
cards to all active voters, notifying them of their polling location and hours. N.Y. Elec. Law§ 4117; Tr. 147:8-12, 148:18-20 (Valentine); Connolly Deel. ,r 27. The statute requires these cards
to be sent as non-forwardable mail; if they are not delivered, the Postal Service returns the card
and provides the County Board with any forwarding information. Id.; Tr. 147:8-12; 150:2-5
(Valentine); Connolly Deel.

,r 27.

County Boards also notify voters if their assigned polling

locations have changed. Tr. 147:13-16; PL Reply FIF at 26. And they notify "voter[s] that his or
her affidavit ballot was counted." Tr. 147:17-20 (Valentine); Ryan Dep. 145: 17-146:18.
Voters are moved to inactive status when a County Board receives information indicating
that a voter may no longer be living at her address of registration. New York relies on five
proxies, or triggering events, to move voters to inactive status. First, voters are marked inactive
if any mail sent by a County Board to a voter is returned as undeliverable. Tr. 147 :4-7
(Valentine). Second, a third-party vendor may match a voter-registration record to a record in
the National Change of Address registry, thus indicating the voter has moved. Tr. 112:14-17
6

(Connolly); Pl. FIF at 16; Def. FIF at 13; Pl. Reply FIF at 25-26. Third, another state may
inform New York election officials that a voter has moved. Tr .143:13-144:8. Fourth, one New
York county may inform another New York county that a voter has moved. Id. Fifth, certain
information from the Department of Motor Vehicles regarding a change in address can also
suffice. Tr. 112:18-20.
As soon as any of these triggering events occur, County Boards take two steps. They
send the voter a confirmation notice, advising the voter that the Board thinks she has moved and
asking her to confirm her current address. N.Y. Blee. Law§ 5-712; Tr. 112:21-25; Ryan Dep.
213:13-214:8; Def. Ex. 36 (sample confirmation notice from Schenectady County). The
confirmation notice is forwardable and serves as a "double check" on whether the voter has
moved. Tr. 113:1-14 (Connolly); Tr. 173:3-10 (Valentine); Pl. Reply FIF at 3-5. At the same
time, the County Board moves the voter to inactive status. Tr. 113:15-25, 114:1-4; 132:20-22
(Connolly). New York law states that "When a voter is sent a confirmation notice pursuant to
the provisions of this article, the voter's name shall be placed in inactive status." N.Y. Blee. Law
§ 5-213. To be clear, voters are marked inactive before they have a chance to respond to the
double check; a voter is marked inactive as soon as the confirmation notice is sent. Id.; Ryan
Dep. 92: 10-93 :6. Each of the five triggering events-including a County Board receiving a
single piece of returned mail from a voter-are thus by themselves sufficient to move a voter to
inactive status.
New York law requires the names of inactive voters to be omitted from the poll books
that are issued by most County Boards and used by poll workers at poll sites on election days.
N.Y. Blee. Law§ 5-213(2) ("The registration poll records of all such voters shall be removed
from the poll ledgers and maintained at the offices of the board of elections in a file arranged

7

alphabetically by election district."); accord Tr. 132:20-133:1 (Connolly). Their names are
instead kept only in the records of their County Board, and cannot appear in poll books, even if
the County uses electronic books. N.Y. Elec. Law§ 5-213 ("If such board uses computer
generated registration lists, the names of such voters shall not be placed on such lists at
subsequent elections ... but shall be kept as a computer record at the offices of such board."); PL
Reply FIF at 10; Brehm Deel.

,r 3.

Moreover, once a voter is placed on the inactive list, County

Boards are no longer required to contact them by mail. Tr. 149:1-4, 150:6-13 (Valentine).
County Boards therefore stop sending them notices in the mail of election dates and the location
of their polling place. Tr. 149:8-13; 150:11-13 (Valentine). Of about twelve-million eligible
voters, about one million New Yorkers are on the inactive list. Tr. 122:5-7 (Connolly); 322:23323 :6 (Meredith); PL Reply FIF at 30.
Voters can get off inactive status in a few ways. A voter can reply to the confirmation
notice, indicating either that she continues to reside at the same address or that she has moved.
Pl. Reply FIF at 5. A voter can also cast a valid affidavit ballot. PL Reply FIF at 3-4, 19; Ryan
Dep. 177: 18-178 :22. If an inactive voter fails to vote in two successive federal general elections
(a period of four years), the state cancels their voter registration. Ryan Dep. 94:3-18.

C.

Affidavit Ballots: The Theory

Inactive voters can still vote-but not by regular ballot. Instead, they must cast an
affidavit ballot, or what many states call a provisional ballot. This section summarizes how this
affidavit-ballot process is supposed to work.
1.

How Voters Cast Affidavit Ballots

When a voter appears at a poll site, the poll worker must first ascertain that they are at the
correct polling location. Tr. 155:2-4 (Valentine). Poll workers often start by searching the
voter's name in the poll book that they have in print. The poll book contains only the names of
8

active voters. Tr. 150:22-151:3 (Valentine) ("the poll book ... is the list of active registered
voters."). If the poll worker finds the voter on the list of active voters, that voter can cast a
regular, electronic ballot. Pl. Reply FIF at 21-22.
But a voter may not appear on the list of active voters for several reasons: she may not be
registered at all, she may be inactive, or the poll worker may be unable to find her name. Ryan
Dep. 89:3-14. If a voter is not listed in the active registry, poll workers cannot look up her
registration and are "unable to ascertain the voter's actual registration address." Tr. 150:22151 :7 (Valentine). In other words, a poll worker has no way to know why that voter is not listed
as active, or even whether the voter is registered to vote at all. Tr. 151: 13-18 (Valentine).
When a voter appears whose name does not appear in the poll book, "poll workers are
required to ascertain whether the voter is at the correct polling place ... the poll worker [must]
consult a map, street finder (listing of street addresses that indicates the election district and
polling place for each address range on the street) or other description of all of the polling places
and election districts." Connolly Decl.

~

53; Pl. Reply FIF at 27-30; see N.Y. Elec. Law§ 8-

302(e). Poll workers may also contact the County Boards to obtain the voter's correct polling
location. Id~ 54. And the poll worker must provide the voter with a notice-to-voter form, "so
that they can decide whether to seek a court order or vote by affidavit ballot." Tr. 155:5-10
(Valentine). These options are explained below. The notice must be presented "in a form
prescribed by the New York State Board of Elections." Def. FIF

~

89. In other words, even if a

voter does not appear in the poll book, poll workers are supposed to offer them a choice between
a court order and an affidavit ballot. Tr. 155:5-10 (Valentine); Ryan Dep. 48:8-50:13, 162:19163:16. The state's policy is that no voter should be turned away because she does not appear on
the active list; they should be permitted to vote by affidavit or seek a court order. See Ryan Dep.

9

162: 19-163:16; 174:3-14. The notice-to-voter form explains these two options. PL Ex. 172 at 84
(sample notice-to-voter form from Columbia County).
If the voter chooses to proceed by court order, the poll worker informs the voter "where

and when a Justice of the Supreme Court or a County Court Judge can be located." Id. Election
judges do not sit in polling locations; in some counties, they are in the offices of the County
Board. Tr. 238:10-15 (Brehm). A court order allows a voter to cast a regular ballot on a voting
machine. A court order is therefore the only way for an inactive voter to cast a regular ballot.
N.Y. Elec. Law§ 8-302(3)(e); Tr. 132:20-133:4 (Connolly). However, voters rarely proceed by
court order. Tr. 238:22-239:10 (Brehm), 409:17-19 (Mohr). And even voters who obtain a court
order are sometimes required to vote by affidavit, even though the order entitles them to a
regular ballot. Tr. 239:1-6 (Brehm); Tr. 409:17-20 (Mohr) ("As a practical matter, there has only
been two court orders issued in the 26-plus years that I have been Election Commissioner [of
Erie County], and both times [the voters have] been directed to vote an affidavit ballot.").
Inactive voters can also proceed by affidavit ballot. A voter who chooses this method
fills out, by hand, (1) the ballot itself, which is identical to that cast by active voters, and (2) a
one-page affidavit contained on the ballot envelope. Tr. 155:14-20; Connolly Deel. ,r 57; PL Ex.
259 (sample completed affidavit). Voters then seal the ballot in the envelope and return it to a
poll worker, who then places it into a secure location. Tr. 155:14-20; Ryan Dep. 54:21-55:14,
199:2-22. Inactive voters do not use the electronic voting machine. PL Reply Facts 14. Among
other things, the one-page affidavit asks the voter for the following information: the voter's
personal information (such as name and date of birth), the voter's party enrollment, the reason
the poll worker was unable to provide a regular ballot, the voter's voting history and information,
and the voter's political-party enrollment. See Pl. Ex. 259. It also asks the voter to "swear or

10

affirm that" she is a United States citizen, has "lived in the county, city or village for at least 30
days before the election," and meets all requirements to register to vote in New York. Id. The
voter must sign and date the affidavit. The voter must also swear or affirm that "The above
information is true, I understand that if it is not true, I can be convicted and fined up to $5,000
and/or jailed for up to four years." Id.
In most counties, the names of inactive voters are maintained in a list available only at
the County Boards. Tr. 408:14-25 (Mohr). Two counties, however, do not follow this approach.
Both Nassau and Columbia Counties choose to keep a supplemental list of inactive voters at
polling sites. In these counties, when a poll worker does find a voter in the active registry, the
worker checks the inactive list.

2.

How the State Counts Affidavit Ballots

Affidavit ballots are not opened or counted on Election Day. Instead, state officials
evaluate them in the days that follow. Ryan Dep. 69:24-82:19. Every affidavit ballot is
evaluated, but many are not counted. Id. at 60:22-61:15. The State may conclude that an
affidavit ballot should not be counted for several reasons. An affidavit ballot envelope may not
be counted if there are errors in its completion. Id. at 195:5-16. For example, a voter may attest
that she wished to be registered as a member of a particular political party but then fail to state
which party. Id. at 57:10-25. A voter may leave portions of the ballot blank. Id. at 55:18-57:25.
Or a voter may fill out an instruction card instead of the envelope itself. Id. at 55:18-56:11.
Moreover, affidavit ballots are counted only upon a determination that "the voter is
eligible to vote in the election." Tr. 68:5-20 (Martin). When evaluating a ballot, therefore, State
officials look up a voter's registration status. Id. There are several possibilities: First, they may
determine that the voter was listed in the poll book all along and voted at her correct location.

11

That voter should have been allowed to cast a regular ballot, but a poll wor~er may have
incorrectly instructed her to vote by affidavit because that worker mistakenly overlooked the
voter's name in the registry, even though her name was listed there. This vote would be counted.
Second, they may determine that the voter voted at her address of registration, but the State had
improperly marked her as inactive. In other words, the voter was marked inactive even though
she did not move. Tr. 69: 17-25-70:8 (Martin). This vote would also be counted, and the voter
would be moved back to the active list. Ryan Dep. 178:23-180:3. Third, they may discover that
the voter did not vote at her place of registration and stated in her affidavit ballot that she has
moved to a new residence. This voter's affidavit ballot would be counted as a vote in her new
election district and her voter registration would be updated with the new address. Ryan Dep.
177: 18-178 :22. Under a new "universal transfer" law, a voter who is registered "anywhere in
New York can cast a valid affidavit for the poll site of their new residence anywhere in New
York." Connolly Deel. ,r 63; Pl. Reply FIF at 19. Fourth, they may determine that the voter may
have never been registered to vote, either because she never registered or because her registration
was canceled. Id. This vote would not count, as an affidavit ballot cannot be used to register in
the first instance. Fifth, in a primary election, they may determine that a voter is not registered
as a member of the relevant political party. This vote would not count. New York State recently
enacted a law that allows the State to count an affidavit ballot if the Board determines that the
voter was eligible and that "the voter substantially complied" with election laws. Assembly Bill
A1320A (2019-2020 Legislative Session), available at
https://www.nysenate.gov//legislation/bi11s/20l9/Al320.
Once this process is complete, each voter who voted by affidavit is mailed a letter
informing her whether her vote was counted and, if it was not, the reason why. Ryan Dep. 85:5-

12

86 :21. Voters can challenge an adverse determination in state court; if they succeed, the State
updates the election tally to include their vote. Id. at 86:22-89:3.

D.

Affidavit Ballots: The Reality

The reality, however, is quite different from the theory. In practice, 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. And affidavit balloting causes substantial delay, in part
because of poll-worker error and confusion, increasing voting times for inactive voters and all
New York voters.

1.

Tens of Thousands of Voters are Placed on the Inactive List Even
Though They Have Not Moved

Common Cause has proven, beyond a preponderance of the evidence, that thousands of
New York voters are placed on the inactive list even though they have not moved. Examples
from voters and statistics analyzed by a voter-theory expert compel this conclusion. And
Common Cause has demonstrated the root of this problem: inaccurate data from the United
States Postal Service and the National Change of Address registry. In short, the proxies that
New York uses to determine voter movement are substantially overinclusive. They erroneously
capture tens of thousands of residents who remain at their address of registration and thus lead
the State to incorrectly move these voters to inactive status.

a. Voter Examples
Common Cause identified numerous voters who did not move but nonetheless were listed
as inactive voters. Robert Holman stated that he has lived in the same home in Erie County since
1965. Pl. Ex. 262, Holman Dep., 11:20-12:19. He testified that he had voted in more than ten
elections since 2000, and had no difficulty voting before 2016. Id. 20:12-25, 22:2-4. In 2016, he
arrived at a polling location, waited in line, and then was unable to cast a regular ballot because

13

his name was not listed in the active registry. Id. 27:10-19. The poll worker "d[id] [nothing]
else to figure out why [he] [was not] in the poll book," and Holman voted by affidavit. Id.
27:20-28:18. Ralph Mohr, one of two commissioners for the Erie County Board of Elections,
testified that Holman had been listed as inactive because "an official postcard mailed by our
office [was] returned by the United States Postal Service as not deliverable as addressed." Def.
Ex. D, Mohr Deel., ,r 17. The State does not dispute that Holman never moved, and therefore he
was incorrectly listed as inactive.
Jacques Fages stated that he has resided in the same New York City apartment since
1980, and has voted in every federal election since. PL Ex. 191, Fages Deel.

,r,r 6-7.

When he

went to vote in 2017, he found he was not listed in the active-voter registry. He therefore voted
by affidavit ballot. Id.

,r 9-14.

Fages stated that he never received any mail from the Board

regarding his complaint about being listed as inactive or whether his affidavit ballot was counted.

Id.

,r 19.

Robert Brehm testified that Fages had been placed in inactive status because a mail-

check card was returned as undeliverable. Brehm Deel. ,r 55-57. The State does not dispute,
however, that Fages never moved from his apartment. Id. Like Holman, therefore, Fages was
incorrectly listed as inactive.
Several other voters testified they had similar experiences. When Susan Stewart arrived
at her polling location in 2018, she found that her name was not listed in the active registry. PL
Ex. 202, Stewart Deel., ,r,r 13-16. Yet she had not moved since she registered to vote. Id.
After substantial delay, Stew~rt voted by affidavit. Id.

,r,r 17-28.

,r,r 5-6.

Similarly, when Katherine

Baldus arrived at her polling location, her name did not appear in the active registry. Pl. Ex. 187,
Baldus Deel., ,r,r 12-13. She had lived at the same residence for five years. Id.

,r,r 6-8.

There

were additional examples introduced at trial. See, e.g., PL Ex. 200, Angela Roberts Deel. (listed

14

as inactive even though had not moved); Pl. Ex. 201, Denise Roberts Deel. (same). Michael
Ryan agreed that "there's certainly people who you get information from the post office and, in
fact, the person still lives where they've always lived." Ryan Dep. 93:7-11. In short, Common
Cause introduced undisputed evidence that numerous voters were incorrectly listed as inactive,
even though they had not moved from their address of registration.

b. The Statistics
One of Common Cause's expert witnesses, Marc Meredith, analyzed this phenomenon
using statistics provided by the State and County Boards. Marc Meredith is a tenured professor
of political science at the University of Pennsylvania. Pl. Ex. 264, Meredith Deel., at 2. He has
"extensive training in economics, political science, and statistics" and has written dozens of peerreviewed articles and books. Most importantly for purposes of this case, Meredith specializes in
in "examin[ing] information contained in voter registration databases to understand the
determinants of voter turnout." Id. His analysis reveals that thousands of New York voters are
incorrectly moved to inactive status even though they continue to reside at their address of
registration.
The State provides statistics that are probative of this issue. For each election, the State
and County Boards release the number of inactive voters who cast a valid affidavit ballot and
were then reactivated to active status at their original address of registration. These are voters
like the individuals discussed above: they continue to reside at the same location, were
improperly designated inactive, and then voted by affidavit. As noted, when an inactive voter
casts a valid affidavit ballot, her voter registration is updated and she is moved back into active
status. In the State's parlance, these are voters who have been "reactivated."
Analyzing this data, Meredith confirmed that "[s]ome registrants are listed as inactive
even though they have continuously resided at their address of registration." Meredith Deel. at
15

12. He also concluded "that approximately 45,000 affidavit ballots were cast in the 2016
presidential election in New York by inactive registrants who resided at their registration
address." Id.; Pl. Ex. 265, Meredith Supp. Deel., at 2.
Meredith made clear that this number represents a floor of the number of voters
improperly marked as inactive. "While these voters represent only a fraction of the total inactive
registrants who reside at their address of registration, quantifying the number of affidavit ballots
inactive registrants cast at their address of registration provides information on the minimum
number of inactive registrants who reside at their address of registration." Meredith Deel. at 14
(emphasis added). In other words, there are voters who continue to reside at their address of
registration but did not vote in subsequent elections or were not offered affidavit ballots, and thus
were not reactivated. Meredith is unable to quantify that population.
In short, Meredith thus found that the problems experienced by voters like Robert
Holman and Susan Stewart are not isolated incidents. Just the opposite: they occur to tens of
thousands of New York voters. Meredith also explained how so many voters are improperly
marked as inactive. Two of the proxies used by the State, the Postal Service and the National
Change of Address Registry, are error-prone and cast too wide a net. Id. at 12-13.

c. Problems with the Postal Service
The Court turns first to the State's most important proxy for voter movement-Postal
Service data. As discussed, the State and County Boards mail millions of pieces of mail to
voters every year. If one of those pieces of mail is returned as undeliverable, the voter is
removed from the active registry, deleted from the poll book, and marked as inactive. Data from
the Postal Service, however, is an unreliable measure of voter movement.
Michael Ryan is a former Commissioner of the New York City Board of Elections and
currently serves as its Executive Director. Ryan Dep. at 11 :6-22. The City Board conducts all
16

state and federal elections in the city-it deploys equipment, organizes training for poll workers,
and will soon manage early voting. Id. 19:18-20:19. As Executive Director, Ryan is responsible
for the City Board's operations and implementing election policy for the city. Id. 17:89-24.
Ryan testified extensively about how Postal Service data is an unreliable proxy for voter
movement. Ryan explained that the "process [of determining which voters have moved] is
almost exclusively reliant on the United States Post Office ... the quality of the information that
we get from the United States Post Office is the linchpin to the success or failure of this
inactivity process." Id. 96:8-24. He went on to state that this data is profoundly unreliable. He
said that "[the City Board] [has] uncovered over the course oftime significant issues with the
consistency of the information that we get from the post office vis-[a]-vis who's at this location
and who is not at the location. Id. at 99:14-18; see also id. at 104:6-8 (bemoaning "the poor
quality and the lack of consistency of the post office"); 205:16-18 (noting his "trepidation about
the overall structural integrity of the [Postal Service] process."). In other words, the Postal
Service often returns mail as undeliverable even though the voter continues to reside at the same
location. And Ryan testified that the Postal Service's coding of undelivered mail, which is
supposed to provide the sender an explanation for why the piece of mail was returned as
undeliverable, can be arbitrary and cryptic. Id. 100:24-101:20. The Post Office uses "about 18
or 19 different potential categories" to code returned mail, and Ryan expressed confusion about
the meaning of these various categories. Id. at 202:11-21; 205:18-206:11; see also 129:6-12
(agreeing that he "still [does not] have clarity" regarding the post office's coding system).
Individual postal workers differ in how they understand these categories, further exacerbating the
problem. Id. 208:6-209:3; 210:2-211:7 (noting that there are "bins for each type of mail that
comes back," and that post office's coding method "switch[es] depending on [which Postal

17

Worker is] throwing the envelopes into the bin."). Ryan explained that "the most disconcerting
part of this whole thing is ... it really comes down to, ultimately, the quality of the work of the
individual postal worker." Id. 99:23-100:6.
Even the confirmation-notice process, which is supposed to serve as a double check, does
not always work perfectly. To start, if the original mail-check notice was returned as
undeliverable due to a Postal Service error, then it is possible that the confirmation notice could
be too. Indeed, if one piece of mail was returned as undeliverable, and the Board has had no
other reason to update the address, it is likely that the second piece of mail will be returned as
well. Moreover, Ryan testified that the Postal Service has returned completed confirmation
cards from voters several months after the voter sent them. Ryan Dep. 86:2-16. These
presumably would have sufficed to reactivate a voter, but because of Postal Service delay, they
were received too late and the voter thus remained inactive during an election. Id. Meredith
explained that "[s]uch errors may be particularly consequential in a state like New York that
does not require that a second piece of mail also be returned as undeliverable for a registration to
be moved from active to inactive." Meredith Deel. at 12-13.
The City Board is so concerned with the Postal Service's unreliability that it has taken
multiple steps to assuage these problems. First, the City Board met with representatives from the
Postal Service to fix these problems, but had little success. Ryan Dep. 133:20-134:4. The City
Board, responsible for more than one-million voters, thus continues to use Postal Service data as
a proxy for voter movement even though it knows about its high error rate. See id. 149:14151: 16 ("I believe we find ourselves basically in the same position we were [in] when we [the
City Board] started" meeting with the Postal Service, more than one-and-a-half years prior).
These errors "disproportionately affect people that happen to live in a multi-unit building." Id.

18

102:2-9; accord 100:7-23. For example, Ryan stated that Bronx County has many multidwelling buildings and faced this problem acutely, calling the issue a "systemic failure." Id.
136:11-137:14.
Second, the City Board adopted a policy to confirm Postal Service reports that a voter has
moved. Ryan explained that, before listing a voter as inactive, the New York City Board checks
whether the voter has voted in a recent election at their address of registration. Id. 125:13-23.
Ryan agreed that "every year there are people who fall into that category where the post office is
telling you they're not there, but in fact, they [are]." Id. at 125:24-126:9. There is no evidence
that any other County Board conducts this sort of confirmation.
Third, the City Board is so concerned about its mail being improperly returned as
undeliverable, and thus causing voters to be marked as inactive, that it "tr[ies] not to send casual
pieces of mail that aren't necessary to eliminate the return issue ... [because] superfluous
communication can lead to an unintended consequence." Ryan. Dep. 108:8-16; accord 98:1899:9 (noting that "while people want us to communicate with the voters by mail and they think
it's a good thing, you can also inadvertently lead to voters becoming inactive"). For example,
notices informing voters that their affidavit ballots were counted have been returned as
undeliverable, thus rendering those voters inactive-even though they had just confirmed their
addresses through the affidavit process. Ryan Dep. 145: 17-146: 18 (explaining that "this is an ..
. example of the unintended consequences that we discussed earlier). In short, Ryan and the City
Board "have little faith in the overall reliability of the quality of information that we get from the
post office." Ryan Dep. 101 :21-25. Ryan is "very concerned for the voters on the quality of
information that we get from the post office." Id. at 105:4-9. And the upshot is clear: voters are
registered as inactive even though they have not moved. Id. 100:25-101 :20.

19

Michael Ryan is not the only election official to testify to this problem. Robert Brehm is
the Co-Executive of the State Board. Def. Ex. A, Brehm Deel., ,r 1. He was also the
Commissioner of the Schenectady County Board of Elections for fifteen years. Id. He agreed
that Postal Service data is an unreliable proxy. Brehm said he had "seen a few of those" in
reference to "voters who went to long-term polling places, hadn't moved, but were wrongly
identified as inactive, returned mail check documents apparently as a result of post office error
otherwise." Tr. 289:22-290:3 (Brehm). He reiterated that he had experience with voters who
were marked inactive but continued to live at their address of registration. Id. 290:16-21
(Brehm). Virginia Martin, the current Commissioner of the Columbia County Board of
Elections, made the same point. She agreed that "inactive voters in Columbia County are casting
affidavit ballots even if they're appearing at the correct polling place and they have not moved."
Tr. 87:22-88: 1 (Martin).
In short, the central proxy that the State uses to determine whether a voter has moved has
serious problems with its reliability, and multiple State officials have expressed concern about its
use.

d. Problems with the National Change of Address Registry
Errors made by the Postal Service are not the only way that the State incorrectly
determines that voters have moved and thus marks them as inactive. As noted above, the State
Board also receives data from the National Change of Address Registry (NCOA). Several
witnesses testified as to the unreliability of that data.
Meredith testified that"[ e]rrors in matching registration records to the NCOA registry
can also incorrectly identify a registrant as having moved." Meredith Deel. at 13. He explained
that the Registry's "primary purpose ... is to support the U.S. Post Office" and it therefore "does
not collect certain data, like date of birth, that would help election officials to link the NCOA
20

data to registration records." Id. The State admits that it relies on the Registry even though
"[t]he NCOA registry does not collect certain data ... that would help" maintain accurate voterregistration records. PL FIF at 16; Def. FIF at 13. Based on data in the NCOA, a County Board
"may incorrectly believe that a registrant has moved if, for example, a family member who
shares the same name as the registrant is actually the person who moved, rather than the
registry." Meredith Deel. at 13. Meredith went on to state that "[a]nother factor that makes it
difficult to link NCOA data to registration records is that a single NCOA can apply to an entire
family." Id.
Both Michael Ryan and Robert Brehm confirmed this problem with NCOA data. Brehm
explained that if an individual within a household has moved, data from the NCOA may lead the
Board to mark the entire family as inactive. Tr. 290:3-15 (Brehm). Ryan identified another
potential problem with the NCOA: "[t]he problems that we have identified with respect to the
NCOA center more on those instances where somebody inadvertently checked the permanent
box as opposed to the temporary box and had only meant to temporarily have their mail
forwarded to a particular location." Ryan Dep. 225:17-25. This situation could arise if
"somebody is temporarily relocated, maybe they care for a loved one." Id. at 226:13-18. In sum,
the two proxies used by the State to determine voter movement are substantially overinclusive.

2.

Some Inactive Voters Are Turned Away from Voting

Although inactive voters are eligible for affidavit ballots, poll workers often fail to offer
them. This is yet another way in which the practice of affidavit voting in New York does not
live up to the theory.
Stephanie Goldberg registered to vote around 2010 and has remained at the same address
since that time. PL Ex. 193, Goldberg Deel., ,r,r 3-6. When she arrived to vote in 2018, her name

21

was not in the active registry. Goldberg Deel. ,r,r 15-17. The poll workers did not offer her an
affidavit ballot. She then left the polling location, looked up her registration status on her cell
phone, discovered she was inactive, returned to the polling location, and showed the poll worker
a screenshot of her voter registration status. Even though that screenshot listed her status as
inactive and confirmed that she was at the correct polling location, she was still not offered an
affidavit ballot. Id. ,i,i 15-31; Ex. A (screenshot). The State admits that "[h]ad a poll worker
provided her an affidavit ballot, Stephanie Goldberg would have cast a ballot that should have
counted in the 2018 general election." PL FIF at 31, Def. FIF at 23. The State also admits that
"[t]he problems experienced by Stephanie Goldberg attempting to vote in the 2018 general
election illustrate how an inactive registrant is disenfranchised when a poll worker fails to offer
an affidavit ballot." PL FIF at 31; Def. FIF at 23.
Susan Stewart testified that she had a similar experience. When she arrived at her polling
location in 2018, her name was not listed in the active registry. Stewart Deel. ,r,r 13-16. She
testified that the poll worker "appeared to be confused and overwhelmed" by the situation. Id.

,r 16.

The poll worker did not immediately offer her an affidavit ballot or take any other steps to

confirm her registration status or polling location. Instead, Stewart called the County Board
herself using her personal cell phone, learned of the affidavit-ballot process, and was then
offered one. Id.

,r,r 17-28.

When Lauren Wolfe arrived at her proper polling location in 2016, she was not listed in
the active registry. PL Ex. 204, Wolfe Deel., ,r 11; see also Def. FIF 66-67 (confirming that
Wolfe was at her proper voting location). The poll worker was unable to locate her in the active
registry, did not offer her an affidavit ballot, and then directed her to another polling location.
Wolfe Deel. ,r,r 10-12. Similarly, when Allison Agro-Paulson went to vote in Brooklyn, she saw

22

several voters whose names were not listed in the poll books leave the polling place without
casting an affidavit ballot. PL Ex. 186, Agro-Paulson Deel., ,i,i 27-29.
Another voter with a similar experience is Sandra Copps. PL Ex. 189, Copps Deel.
Copps has lived in her Bronx apartment since 1998. Id. ,i 6. When she went to vote in the 2018
primary election, she was informed that she was not listed in the poll book. Id. ,i,i 13-18. The
poll workers did not inform Copps that she could vote using an affidavit ballot or offer her one,
and she testified that if she "had been offered the opportunity to cast an affidavit ballot at the
primary election held on September 13, 2019, I would have done so." Id. ,i,i 17-18, 23. The
State notes that Copps was not registered as a member of the correct political party to be eligible
to vote in the 2018 primary. Def. FIF 64-65. But nothing suggests that the poll worker (or even
Copps) knew that at the time. Under the State's policy, when the poll worker was unable to
locate Copps' name in the registry, she should have been offered an affidavit ballot-not turned
away from the poll site.
Two state officials confirmed that this phenomenon is not limited to just these
individuals, but occurs in each of the counties they administer. Virginia Martin testified that she
knows that some poll workers "will make a judgment that a voter is not eligible and tell them
they cannot vote by affidavit ballot." Tr. 88:25-89:2 (Martin). She confirmed that "based on
[her] experience, sometimes poll workers fail to offer affidavit ballots to eligible voters in
Columbia County polling places." Tr. 90:9-12 (Martin). Michael Ryan agreed that "as a
practical matter, given [his] role and experience as executive director [of the New York City
Board of Elections], [he knows] that" "people whose names aren't in the books, in fact, leave the
poll site without voting an affidavit." Ryan Dep. 248:11-22.

23

Further evidence comes from an audit conducted by New York City's Office of the
Comptroller. The Office audited the City's Board of Elections in 2017 and produced a report
summarizing its finding. See Pl. Ex. 55. The parties stipulated to the report's admission into
evidence, and the State did not raise any objection to it. Dkt. No. 157 (stipulation); Dkt. No.
130, Joint Pretrial Report, at 26 (no objection to this document). The Report noted that "[a]t one
site, rather than following federal and State law and offering an affidavit ballot to a voter whose
name was not found on the registration rolls, the coordinator told the information clerk that the
voter was not able to vote at all. This error could have disenfranchised the voter, whose
eligibility could have been verified had the voter been allowed to vote with an affidavit ballot."
Pl. Ex. 55 at 11-12.
The State does not track how many voters appear at the correct polling place, are eligible
to cast an affidavit ballot, yet leave because they are not offered one. Connolly testified that the
Board did not know, and did not keep any statistics on, how many inactive voters fell into this
category. Tr. 129:3-6, 130:4-6 (Connolly). Valentine stated that "there is no way to measure
how many inactive voters are turned away from the poll without being offered an affidavit
ballot." Tr. 156:14-17 (Valentine). He also later testified that there is no way to know how
many voters arrive at the polling site but then choose not to vote, perhaps because of delay. Tr.
165:11-168:7, 174:11-21 (Valentine). The State does not "have a systematic procedure with
respect to retaining or logging voter complaints." Tr. 166:9-15 (Valentine). The Court then
asked Valentine how the State would even know if they have a systemic issue, as it does not
"regularly log or retain complaints." Tr. 167:7-8 (Valentine). Valentine claimed that the Board
would know through word of mouth, calls from the County Boards, and media reports. Tr.
167:7-169:12 (Valentine).

24

3.

Affidavit Voting Causes Delay

Affidavit ballot also causes substantial delay at polling locations throughout New York.
Inactive voters often face delays in receiving and casting ballots, and these delays have ripple
effects for all New York voters.

a. It Takes More Time to Receive an Affidavit Ballot than a Regular
Ballot
Common Cause describes the problem as follows: "The Voting experiences of New York
voters who attempted to vote at the correct polling place but whose names could not be located
in the poll book were complicated, involved multiple and often redundant interactions with poll
workers, and took a relatively long time." PL FIF at 19. The evidence supports this conclusion.
When a voter is not listed in the poll book, New York law requires poll workers to
attempt to find their correct polling location. "Whenever a voter presents himself or herself and
offers to cast a ballot, and he or she claims to live in the election district in which he or she seeks
to vote but no registration poll record can be found for him or her in the poll ledger ... a poll
clerk or election inspector shall consult a map, street finder or other description of all of the
polling places and election districts within the political subdivision in which said election district
is located and if necessary, contact the board of elections to obtain the relevant information and
advise the voter of the correct polling place and election district for the residence address
provided by the voter to such poll clerk or election inspector." N.Y. Elec. Law. § 8-302(3)(e);
accord Connolly Deel. 153; Def. Ex. D, Mohr Deel., 17 ("It is the policy of the Erie County

Board of Elections that if a poll worker cannot find the name of a voter in the poll book, the poll
worker must verify that the voter is in the proper polling location and election district by utilizing
the street listing which is provided to each election district with their supplies; that poll workers
are instructed that persons appearing at the wrong location must be directed to the correct
25

location and provided with directions."). This process takes substantially longer than check in
for active voters, who often can cast ballots within minutes of reaching the poll worker.
Virginia Martin testified that poll workers take even more steps for inactive voters. She
stated that when an inactive voter "arrives at the polling place" and "the poll inspector cannot
find her name," the poll worker "will question [the voter] as to whether she has had a name
change, will question her as to the spelling of her name." Tr. 84:1-16 (Martin). Poll workers are
also "instructed ... [to] just call the Board of Elections if [they] have any questions." Tr. 85:2125 (Martin) (emphasis added). The State thus requires poll workers to jump through a few hoops
before offering inactive voters affidavit ballots. And the State does not make the process
seamless. For example, the State does not provide landlines to all poll workers, and workers
trying to make calls or use the internet from personal cell phones may face connectivity issues.
Trial Tr. 92:12-20 (Martin) (noting that poll sites do not have landlines and poll workers "rely on
their cell phones in almost every instance, if they can get connection.").
Various voters testified that when they were not found in the poll book, the poll workers
proceeded to give them an affidavit ballot; these voters did not mention the poll workers
conducting any independent search about their polling location. For example, when poll workers
failed to locate Stephanie Goldberg in the poll book, they expressed confusion and did not look
up her address ofregistration. Goldberg Deel. ,r,r 15-20, see also Wolfe Deel. ,r,r 11-20. The
same was true for Robert Holman, who testified that poll workers told him he was not listed in
the active registry but took no further steps, such as calling the County Board or using Voter
Search, to confirm his registration status or polling location. Holman Deel.

,r,r 11-14; Holman

Dep. 27:20-31: 13. And more than 35,000 voters who were not listed in the poll books in the
2016 election cast ballots in the wrong polling location. Meredith Supp. Deel.

'if 5.

26

Voters not appearing in the poll book should, under New York law be provided with a
notice-to-voter form, explaining that they can either seek a court order or vote by affidavit ballot.
However, no voter reported that poll workers actually provided this form. See, e.g., Ex. Pl 86,
Agro-Paulson Deel.; Ex. P187, Baldus Deel.; Ex. P189, Copps Deel.; Ex. Pl 90, Edelman Deel.;
Ex. P191, Fages Deel.; Ex. Pl 93, Goldberg Deel.; Ex. P194, Goldblum Deel.; Ex. P195, Holman
Deel.; Ex. P196, Johnson Deel.; Ex. P197, Lavnick Deel.; Ex. P198, Matika Deel.; Ex. P200, A.
Roberts Deel.; Ex. P201, D. Roberts Deel.; Ex. P202, Stewart Deel.; Ex. P203, Wilson Deel.; Ex.
P204, Wolfe Deel. Similarly, voters who cast affidavit ballots should be informed at a later date
whether their affidavit ballot counted. However, several voters did not receive these
notifications. Ex. P262, Holman Dep., 49:14-16, 50: 14-51 :22, 54:12-13 (no confidence that his
affidavit ballot was counted); Ex. P186, Agro-Paulson Deel., 134 (does not know whether her
affidavit ballot was counted); Ex. P187, Baldus Deel., 125 (same); Ex. P202, Stewart Deel., 1
38.
Inactive voters thus face delay even if all goes according to plan. But the testimony of
numerous voters reveals that New York's poll workers do not uniformly follow this process, are
confused about the affidavit-ballot process, and often give voters incorrect directions. Taken
together, voters who do not appear on the active registry can spend significant amounts of time
just getting the affidavit ballot to which they are entitled.
The record is replete with testimony to this effect. To start, Allison Agro-Paulson arrived
at her polling location during the 2018 election, but was not listed in the active registry. AgroPaulson Deel. 11 14-16. She spent time with the poll workers "double-check[ing] the poll book
to confirm [she] was not listed, and checked all possible iterations of my last name, such as
'Agro Paulson,' 'AgroPaulson,' 'Agro,' and 'Paulson,' for example. None of the possible

27

permutations of my name were listed in the poll book." Id. 116. She also spent time checking
whether her husband's name was listed in the poll book, and the poll worker confirmed that he
had already voted and had signed the poll book. Id.

1 17.

The poll workers directed Agro-

Paulson to check with various other workers, causing her to spend additional time walking
around the poll site. Id. 1119-21. The poll workers did not attempt to contact the State or
County Boards. Id. 122. The poll workers eventually gave her an affidavit ballot, which she
filled out. Id. 1123-24. The State represents that her ballot was counted, but provides no
explanation for why she was not listed in the active registry, even though she had not moved.
Def. FIF at 67. All in all, Agro-Paulson spent approximately one hour attempting to vote. AgroPaulson Deel. 127.
Stephanie Goldberg had a similar experience. When she arrived to vote in 2016, her
name was not in the active registry. PL Ex. 193, Goldberg Deel. 1115-17. The poll workers
were unsure how to proceed, spoke with each other, and ultimately did not offer Goldberg an
affidavit ballot. Id. 11 18-21. She then left the polling place, returned to her car, used her cell
I

phone to search her registration information, and discovered she was inactive. Id. 1120-25. She
then returned to the polling place and showed the poll workers a screenshot of her registration.

Id. 1127-29. She was still not offered an affidavit ballot, returned to her car again, called the
County Board, and emailed the State Board. Id. 1130-37. She then left the polling location to
attend university classes. Id. 1137-38. The State Board eventually informed her that she could
vote by affidavit, but she did not have enough time after her classes to return to the polling
location. Id. 1138-42. Goldberg does not state how long she spent at her polling location, but it
is clear that she was not offered an affidavit even after multiple interactions and after showing
the poll worker her registration.

28

Other voters faced similar delays in getting their affidavit ballots. As discussed above,
when Susan Stewart arrived at her polling location in 2018, her name was not listed in the active
registry. Stewart Deel. ,i,i 13-16. The poll worker did not immediately offer her an affidavit
ballot or take any other steps to confirm her registration status or polling location. She said that
a poll worker tried to call the Board, but "was taking a long time and his phone did not seem to
be working properly." Id. ,i 18. Stewart thus took matters into her own hands, called the County
Board herself using her personal cell phone, learned of the affidavit-ballot process, and was then
offered one. Id. ,i,i 17-28. When Lauren Wolfe arrived at her polling location in 2016, she too
was not listed in the active registry. Pl. Ex. 204, ,i 11. The poll worker directed her to another
polling location. When she reached that location, the worker there told her she was not in the
book, and that she should go back to the original location. She was given an affidavit at the
original location, and it is not clear how long this back-and-forth took. Id. ,i,i 11-16. Robert
Holman testified as to his experience not being listed in the active-voter registry, despite not
having moved in decades. When he arrived at the polling location, the poll workers were unable
to locate his name in the poll book. Holman Dep 27:20-28:18. They took five to ten minutes to
offer him an affidavit ballot, even though they did nothing else to confirm his address or proper
polling location (such as calling the County Board or using Voter Lookup). Holman Dep. 28:529:4.
The Audit Report further supports this conclusion. The Report states that "[w]e also
observed an apparent lack of knowledge on the part of numerous poll workers as evidenced by
their failure to follow proper procedures mandated by law, including ... An inspector at one site
did not know how to proceed after being unable to find a voter's name on the list of registered
voters." Pl. Ex. 55 at 16. The Report also confirmed that poll workers provided "misinformation

29

or no information ... at various poll sites that, at a minimum, caused confusion, and that
increased the risk that ... voters would not be able to vote or that their choices of who to vote for
might be influenced by the misinformation provided." Id at 16. For example, "[a]t one site a
coordinator was not able to answer a poll worker's question regarding affidavit ballots and sent
the poll worker to other poll workers for the answer." Id The Report provides another example
in which "the workers' apparent lack of knowledge resulted in a chain of missteps that lasted

thirty minutes." Id at 17 (emphasis added). There, the poll worker was unable to find the
voter's name in the active registry, and then "asked the voter for an ID (prohibited by federal
Election Law) rather than offering an affidavit ballot, as required." Id The coordinator
overheard this exchange and offered the voter an affidavit, "but failed to instruct the voter to fill
it out a privacy booth." Id. The inspector then "incorrectly instructed [the voter] to scan the
affidavit ballot at the scanner rather than to return the ballot to the table inspector, who was
required to store all completed affidavit ballots in a separate envelope." Id. at 17-18. The
scanner did not accept the ballot, the voter returned it to the inspector, who then "required the
assistance of another table inspector in order to properly store it." Id. at 18. In sum, the
affidavit-ballot process confuses poll workers and voters alike, and New Yorkers spend
significant chunks of time receiving the affidavit ballot to which they are entitled.

b. It Takes Time for Voters to Cast an Affidavit Ballot
It also takes longer to cast an affidavit ballot than a regular ballot, thus placing an
additional burden on this subset of voters. Brehm testified that, in his experience as an election
administrator, completing an affidavit ballot takes "two to three extra minutes" more than a
regular ballot. Tr. 285:7-13 (Brehm). Valentine agreed that "filling out the affidavit" will "take
more time" than casting a regular ballot. Tr. 154: 17-23 (Valentine). Ryan likewise noted that
affidavit ballots "provide a level of inconvenience to the voter in that [they] cause[] their process
30

to take longer." Ryan Dep. 51: 12-19. For example, completing the affidavit ballot took Holman
an additional "[±Jive, ten minutes." Holman Dep. 31 :2-4.
Meredith testified that "the amount of time it would take to fill out an affidavit ballot
would depend heavily on someone's reading comprehension ... the type [on the affidavit ballot]
is small." Tr. 316:25-317: 12 (Meredith). In other words, "filling out an affidavit ballot [is not]
equally burdensome for all voters," and the time involved will depend on reading level, eyesight,
and whether the affidavit ballot is offered in the voter's preferred language. Tr. 352:1-10
(Meredith). And although one portion of the affidavit ballot is optional, in theory reducing
delay, Meredith testified that "based on [his] own visual inspection of affidavit ballots that even"
voters fill out this section do so anyway because "they don't realize they don't have to do that."
Tr. 351:15-21 (Meredith).

c. This Additional Time Spent Causes Ripples of Delay, Thus
Creating Delay for All New York Voters
The delays faced by inactive voters creates delay for all New Yorkers. Meredith testified
that "excluding inactive voters' name from poll books ... increases the wait times for anyone
who shows up to vote in New York." Tr. 350: 1-12 (Meredith). He reached that conclusion
based on the limited bandwidth of poll-workers. "[W]e know poll worker resources are scarce
on Election Day, that poll workers have to deal with a lot, and any time that poll workers are
spending doing lookups on where someone, if someone is in the correct election district or not, is
taking away resources that could be applied to other tasks that they have to do on Election Day
including checking-in other voters." Tr. 350:13-22 (Meredith).
These delays also cause some voters to not vote all together. "Reneging is when
someone gets into a line in a polling place and then leaves that line without casting a ballot." Tr.
318 :6-8 (Meredith). Meredith testified that "the best peer-reviewed evidence" suggests that the
31

longer someone has to wait to vote, the more likely she is to renege. Tr. 353:9-17; accord
Meredith Deel. at 7. Meredith thus concluded that the affidavit-ballot process and the State's
decision not to list inactive voters in poll book both increase delay and therefore reneging.
Common Cause's other expert witness agreed with this conclusion. Troy Grayson served
as Kentucky's Secretary of State for seven years, and he was thus the state's "chief election
officer" during that period. Pl. 238, Grayson Deel., ,r 2. He also served as the President of the
National Association of Secretaries of State and was appointed by President Obama to the
Presidential Commission on Election Administration. Id. ,i,i 3-5. Grayson testified that "[v]oters
on the active list, for example, face longer lines because of the extra time that inactive voters
require at check-in because of the absence of the inactive voter list in the precinct." Id. ,i 43.

d. These Problems are Made Worse by Limited Poll-Worker
Training and Bandwidth
A lack of poll-worker training and understaffing contribute to this delay. Poll workers
receive little training on how to process inactive voters. County Boards are responsible for
providing poll worker training. Def. Ex. B, Connolly Deel., ,r 16 ("The training of these poll
workers is provided at the county level."). Connolly testified that "[t]he duration of poll worker
training sessions ranges from one and half hours to six hours, depending on the county." Id.
Most poll workers work only one to three times a year, although some poll workers may work
for multiple years. Connolly Deel. at ,r 4. In 2016, more than 7,000 of the poll workers in New
York City were first-time poll workers. Meredith Deel. at 24. The State agrees that "[t]he
temporary nature of poll work also increases the likelihood of poll workers failing to adhere to
proper protocols." PL FIF at 25; Def. FIF at 19. And although the State Board provides the base
curriculum that County Boards are supposed to use in these trainings, which briefly covers

32

inactive voters, it does not evaluate the extent to which the trainings provided by the County
Boards follow its curriculum. Tr. 123:8-22 (Connolly); Pl. FIF 23; Def. FIF at 17.
In New York City, most poll workers receive training once a year. Ryan Dep. 41:2244:20 (testifying that poll workers in New York City are typically trained once a year). Ryan
testified that poll workers receive a basic training course of four hours. Id 159:24-160:15. The
New York City board scaled back its training recently, reducing it from six hours to four. Id.
172:3-12. And at this limited training, affidavit ballots are just one of many topics covered.
Ryan stated that instructions regarding affidavit ballots are "an element of the training ... I
couldn't tell you how much it's stressed in the moment." Ryan Dep. 166:21-9; see also Tr.
123:20-22 (Connolly) ("I cannot say with any certainty" how much time "is spent on training
poll workers regarding inactive voters and affidavit ballots.").
State officials testified that poll workers thus make mistakes. Grayson Deel., ,r 39, Ex.
P263, Ryan Dep., 45:3-24 (acknowledging that New York City poll workers are "human beings"
and "occasionally make mistakes"); Connolly Deel.

,r 5; (admitting that "there will inevitably be

problems to address"); Tr. 98:8-17 (Mohr); see also Tr. 106:24-107:3, 107: 13-108:7, 111 :2112:6 (Connolly).
Polling locations may also be understaffed. Meredith testified that "[i]n New York City,
at least 3,000 poll worker positions went vacant, suggesting no one qualified could be found who
wanted the job. And it is not just New York City that struggles to find poll workers in New
York. Responding to the question of how easy or difficult is it to obtain poll workers for the
general election, 46 of the 56 counties outside of New York City reported it was at least
somewhat difficult, with 20 reporting it was very difficult." Meredith Deel. at 22 (citing reports
from the State and New York City Boards); Pl. FIF at 22; Def. FIF at 16. Meredith further

33

explained that "we know poll worker resources are scarce on Election Day, that poll workers
have to deal with a lot, and any time that poll workers are spending doing [a task] is taking away
resources that could be applied to other tasks that they have to do on Election Day including
checking-in other voters." Tr. 350: 14-20 (Meredith). Understaffing compounds the problem of
limited poll-worker bandwidth. The State agrees that "U]urisdictions cannot be particularly
selective about whether potential poll workers possess qualities that would help them do a more
effective job when they cannot even find enough poll workers to fill all of their available
positions." Pl. FIF at 25; Def. FIF at 19.
The Audit Report confirms the staffing problem, at least with respect to New York City.
The Comptroller "found staffing deficiencies at 76 percent of the poll sites [it] visited," such as
"specific roles that were not filled by the BOE, poll workers who did not arrive for work on
Election Day, and inadequate assignment of interpreters for required languages." PL Ex. 55 at
18. The Report made clear that "[a] lack of poll workers at each site can result in longer lines,
less assistance for voters and greater confusion in the voting process, all of which would frustrate
individuals' attempts to vote and ultimately depress the total numbers of votes cast." Id.
To be sure, training poll workers is no easy task. These individuals work only a few days
per year, and some do not work every year. Def. FIF at 16. Yet they are effectively responsible
for ensuring that millions of New Yorkers exercise their franchise. And increased training
strains the resources of the County Boards, which already spend substantial resources
administering the elections. The State is correct that"[w]hen the conduct of an election involves
a one day work force of over 60,000 people administering an election at which, in the case of the
2016 election, 7.8 million people participate, there will inevitably be problems to address."
Connolly Deel., 21. The Court does not question the State's good faith and the substantial

34

efforts it has taken to improve poll-worker training. Nor does the Court question the good faith
of the poll workers. As Michael Ryan noted, many individuals work as poll workers because
"[t]hey want to serve their community, they want to be part of an important piece of our
democracy." Ryan Dep. 45:7-24. Yet the record nonetheless compels the Court to conclude that
poll workers receive minimal training about the affidavit-ballot process, leading some voters to
not receive affidavit ballots and causing delay for all New York voters, and that these problems
are compounded by understaffing.

4.

The State Erroneously Rejects Some Affidavit Ballots

Another problem with affidavit balloting arises in the State's review process. To be sure,
the State has legitimate reasons for rejecting affidavits, like if a voter fails to complete them. But
the State also admits that it has improperly rejected some affidavit ballots, thereby
disenfranchising those voters.
Denise and Angela Roberts were both listed as inactive even though they continued to
reside at the same address. When they attempted to vote in 2016, they arrived at the correct
polling location and cast affidavit ballots. But a few months later, they learned that the State had
not counted their ballots. Pl. Ex. P261, D. Roberts Dep., 10:16-12:5, 46:16-47:12, 51:5-17; Ex.
P201, D. Roberts Deel., ,r,r 11-21; See Ex. P200, A. Roberts Deel., ,r,r 16-35.
The State cannot identify any legitimate reason why these ballots were not counted.
Bernadette Tooms, the Commissioner of Elections for Tioga County, admitted that these
affidavit ballots should have been counted and could not identify why this mistake occurred. Pl.
Ex. 230, Toombs Deel.

,r 10.

He stated that "it appears that [Denise Roberts'] affidavit ballot

cast in 2016 was not counted. It should have been. This was an error and we are very sorry that it
occurred." Id. He further explained that the "ballot was incorrectly researched by a former

35

Commissioner and it got by [his] review as well." Id. He said he was not aware of other similar
instances, but could not "state this never happened on any other occasion." Id.

,r 12 (emphasis in

original). Connolly admitted that these affidavit ballots should have been counted, and agreed
that Denise Roberts "was improperly disenfranchised." Tr. 110:23-111: 1 (Connolly).

E.

A Supplemental List of Inactive Voters Would Alleviate Some of These
Problems

Two New York counties, Columbia and Nassau, offer two lists of voters at polling
locations. The first list is the registry of active voters, in accordance with state-wide practice.
But they also offer a second list: the names of all inactive voters registered to vote in that
election district. The Court concludes that providing this supplemental inactive list alleviates
some of the problems discussed above.
Virginia Martin testified to the benefit having such a list provides. She stated that when
an inactive voter "arrives at the polling place" and "the poll inspector cannot find her name," the
poll worker "will question [the voter] as to whether she has had a name change, will question her
as to the spelling of her name." Tr. 84:1-13 (Martin). She explained "[s]ometimes poll
inspectors have a little trouble finding names in the poll book and hopefully they will look for
the challenge inactive list and see if the voter is on that list. And if the voter is on that list and
they have already ascertained that the voter is at the same address, as you have said, then they
would -- then they would offer the voter the notice to voter's list where the voter could either
request a court order or could ask to vote by affidavit ballot." Id. In other words, if a voter is not
listed in the active registry, poll workers in Columbia County can check the inactive list. If the
voter appears on that list and states they continue to reside at the same address, the poll worker
can offer that voter an affidavit ballot and be confident that the voter is at the correct polling site.
Martin confirmed that this is the case: "if the voter is on the inactive voter list and is at the same
36

address as the voter says he lives at, then that indicates to the inspector that that voter is in the
proper poll site at the proper district, therefore that's the proper district for the voter to vote
from." Tr. 84:23-85:3 (Martin). The Court asked Martin whether "based on [her] experiences,
having the supplemental poll list available at the polling place is a helpful tool for the poll
workers and identifying inactive voters?" Tr. 84:14-16. Her answer was unequivocal: "Yes, it
is." Tr. 84:17 (Martin).
Meredith agreed that "if inactive registrants were in the poll book at their address of
registration, that would simplify the process that they would have to go through relative to what
it is now." Tr. 348: 11-20 (Meredith). And because "the process of identifying whether that
person was in the right spot would be simplified," "the total burden on voters" would be reduced.
Id. 348:21-25 (Meredith).

The State contends that providing the inactive list "could bog down the voting process."
PL Reply FIF at 13. But they present no evidence to support this proposition. As discussed,
Common Cause has proven that the opposite is true: the lack of supplemental lists at the poll
sites causes confusion and delay. And the experience of Columbia and Nassau Counties
discredits this argument. Martin testified that, in her many years of experience, she was "not
aware of any complaints about Columbia County's placement of inactive voters on [a
supplemental list] from voters, poll workers, election officials, or anyone else." Martin Deel.
~

25. Valentine further testified that he was not "aware of Nassau County having problems with

implementing supplemental poll books at the polling place." Tr. 163:24-164:1. In sum,
providing the list of inactive voters at polling locations helps assuage many of the problems
associated with New York's affidavit-balloting procedures.

37

F.

Common Cause Has Diverted Resources Because of New York's Practices

As a result of the New York laws at issue in this litigation, Common Cause diverted
various resources from its usual activities.
Susan Lerner, the Executive Director of Common Cause's New York chapter, testified to
the resources expended by the organization because of these issues. Common Cause deploys
Election Day poll monitors throughout the State, and their attention and efforts have frequently
been diverted because of issues related to New York's inactive voters, including making sure
that voters who are not listed in the poll books are allowed to cast affidavit ballots. See Tr.
203:13-204:3, 204:10-25 (Lerner); Ex. P237, Lerner Deel., ,i 12. During and after the 2016
election cycle, Common Cause staff spent substantial staff time and resources reaching out to,
educating, and assisting voters who complained that they were not listed in the poll book on
Election Day. Lerner Deel. ,i,i 10-12; Tr. 203:13-204:3, 204:10-25 (Lerner). Common Cause
has also conducted public education and outreach campaigns, public advocacy at hearings, press
conferences, meetings with the New York State Board of Elections, and legislative advocacy.
Lerner Deel. ,i,i 13-18; Tr. 205:3-206:9, 209:14-211 :18 (Lerner).
Lerner also personally took various steps as a result of New York's conduct. She created
a survey to send to New York State residents to learn about their experiences attempting to vote
in 2016. Ex. P237, Lerner Deel., ,i 14. She personally spoke with voters who said that they were
not listed in the poll book on Election Day. Lerner Deel. ,i 14. She helped affected voters by
contacting county and state election officials to try to ascertain their voter registration status and
whether or not their affidavit ballot might be counted. Id And during and after the 2016
election cycle, Lerner developed a public-information campaign to raise awareness and educate
voters concerning the circumstances faced by the many voters who arrived at the polling place
but find that their names are not listed. Lerner Deel. ,i 13. "Common Cause's efforts included
38

alerting voters to potential problems at the polls and encouraging them to be proactive if they
experienced problems with voting or their registration status." Id.; Tr. 205:3-206:9, 209:14211 :18 (Lerner).
During the 2018 election cycle, Common Cause also hired a contractor, Katherine
Hawkland, who was primarily devoted to voter engagement. Ex. P237, Lerner Deel., ,i 16.
Hawkland spent substantial time reaching out to inactive voters, who were at the risk of being
disenfranchised. Id. Hawkland was compensated at a rate of $5,000 per month. Lerner Deel.

,i 16. In short, Common Cause spent substantial monetary and dedicated non-monetary
resources as a result of the New York laws at issue in this litigation.

III.

COMMON CAUSE HAS STANDING TO BRING THESE CLAIMS
The Court turns next to its conclusions of law. As always, the Court must first ensure

that it has subject-matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583
(1999) ("Article III generally requires a federal court to satisfy itself of its jurisdiction over the
subject matter before it considers the merits of a case."). Federal courts may hear only "Cases"
and "Controversies." U.S. CONST. art. III, § 2. Courts have interpreted this requirement to mean
that a party invoking a court's jurisdiction must have standing. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (I'OC), Inc., 528 U.S. 167, 188 (2000). In order to have standing, a
plaintiff must establish three elements. A plaintiff must have: "(1) suffered an injury in fact, (2)
that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016). The standing dispute in this case focuses exclusively on the first factor. To establish
injury in fact, a plaintiff must demonstrate an injury that is "concrete, particularized, and actual
or imminent." Clapper v. Amnesty Int'! USA, 568 U.S. 398,409 (2013) (internal quotation
marks omitted). The Second Circuit has repeatedly described the injury-in-fact requirement as a
39

"low threshold." John v. Whole Foods Mkt. Grp., Inc., 858 F .3d 732, 736 (2d Cir. 2017)
(quoting Ross v. Bank ofAm., NA., 524 F.3d 217,222 (2d Cir. 2008)); see also WC Capital
Mgmt., LLC v. UBS Sec., LLC, 711 F.3d 322, 329 (2d Cir. 2013). "The plaintiff, as the party
invoking federal jurisdiction, bears the burden of establishing these elements." Spokeo, 136
S.Ct. at 1547.
The Supreme Court and the Second Circuit have recognized diversion of resources as an
injury in fact that may be sufficient to establish organizational standing. In Havens, the
Supreme Court held that an organization has standing to sue on behalf of its members if the
defendant's illegal acts impair its ability to engage in its projects by forcing the organization to
divert resources to counteract those illegal acts. Havens Realty Corp. v. Coleman, 455 U.S. 363,
378-79 ( 1982). The Court determined that these injuries were sufficiently concrete to be more
than the "abstract social interests" not cognizable under Article III. See id at 379; accord Nnebe
v. Daus, 644 F.3d 147, 157 (2d Cir. 2011); Ragin v. Harry Macklowe Real Estate Co., 6 F.3d
898, 905 (2d Cir. 1993). The diversion ofresources need not be monetary. See Mid-Hudson
Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 174-75 (2d Cir. 2005)
(organization spending time to locate, recruit, manage, train, and supply volunteers sufficient to
confer standing). Additionally, when a defendant's actions impede an organization's ability to
carry out its daily responsibilities, the plaintiff has suffered an injury in fact. See Centro de la
Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 110 (2d Cir. 2017).
The Courts of Appeals are uniform in recognizing standing in these circumstances. The
Seventh Circuit recently explained "that a voting law can injure an organization enough to give it
standing by compelling [it] to devote resources to combatting the effects of that law that are
harmful to the organization's mission." Common Cause Indiana v. Lawson, 937 F.3d 944, 950

40

(7th Cir. 2019); see also Fla. State Conference of NA.A.C.P. v. Browning, 522 F.3d 1153, 116465 (11th Cir. 2008) (finding standing because "[t]he organizations reasonably anticipate that they
will have to divert personnel and time to educating volunteers and voters on compliance with
[voting law] and to resolving the problem of voters left off the registration rolls on election
day"); Common Cause/Georgia v. Billups, 554 F.3d 1340, 1350 (11th Cir. 2009) (NAACP had
standing to challenge a photo ID law based on diversion of resources from regular activities to
educating voters about the new requirements and helping them get IDs); Scott v. Schedler, 771
F.3d 831, 836-39 (5th Cir. 2014) (NAACP had standing to challenge failure to provide
registration forms to persons visiting benefit offices because NAACP spent additional time on
registration drives as a result); Nat'l Council ofLa Raza v. Cegavske, 800 F.3d 1032, 1040 (9th
Cir. 2015) (organizations had standing based on additional resources spent assisting people who
should have been registered through state public assistance offices with voter
registration); Northeast Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 624 (6th Cir.
2016) (organization that helped homeless voters had standing to challenge a change in law that
required it to overhaul the focus of its voter-education and get-out-the-vote programs); OCAGreater Houston v. Texas, 867 F.3d 604,612 (5th Cir. 2017) (upholding organizational standing
for non-profit based on injury resulting from extra time spent educating voters about a new
voting law).
Common Cause argues it has standing because it has diverted resources as a result of the
New York election laws at issue here. As noted above, Common Cause held trainings, spent
substantial energy assisting voters, hired new staff, and conducted a large-scale survey directly in
response to New York's laws. Common Cause has demonstrated that it would not have
conducted these activities but for the State's practices. And it has shown that absent the laws at

41

issue here, Common Cause would have dedicated these resources to other issues. These facts are
sufficient to confer organizational standing, and Common Cause has thus met its burden under
Article III.

IV.

THEANDERSON-BURDICKFRAMEWORK
The Court turns next to Common Cause's constitutional challenge. Voting is a

fundamental right, and is protected by the Fourteenth Amendment's guarantee of "equal
protection under the laws." U.S. CONST. AMEND. XIV; see e.g., Reynolds v. Sims, 377 U.S. 533,
561-62 (1964) ("Undoubtedly, the right of suffrage is a fundamental matter in a free and
democratic society."). The right to vote is the fount from which all other rights flow.
"Especially since the right to exercise the franchise in a free and unimpaired manner is
preservative of other basic civil and political rights, any alleged infringement of the right of
citizens to vote must be carefully and meticulously scrutinized." Reynolds, 377 U.S. at 562.
A balancing test governs the constitutionality of laws regulating the right to vote. The
Supreme Court laid out this framework in Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983),
and Burdick v. Takushi, 504 U.S. 428, 433-34 (1992). Anderson-Burdick scrutiny is a flexible
test that aims to balance citizens' constitutional right to vote against states' legitimate interests in
regulating elections. It requires courts to "weigh 'the character and magnitude of the asserted
injury to the ... rights that the plaintiff seeks to vindicate' against 'the precise interests put
forward by the State as justifications for the burden imposed by its rule,' taking into
consideration 'the extent to which those interests make it necessary to burden the plaintiffs
rights."' Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789); see also Green Party of

NY State v. NY State Bd. of Elections, 389 F.3d 411,419 (2d Cir. 2004).
Under this framework, election laws that impose no burden on the right to vote are
subject to rational-basis review. See Ne. Ohio Coal. For the Homeless v. Husted, 696 F.3d 580,
42

592 (6th Cir. 2012). Laws that severely burden the fundamental right to vote, such as a poll tax,
trigger strict scrutiny, and must be "narrowly drawn to advance a state interest of compelling
importance." Norman v. Reed, 502 U.S. 279,289 (1992). And "[f]or the majority of cases
falling between these extremes, [courts] apply the 'flexible' Anderson-Burdick balancing test."
Coal. For the Homeless, 696 F.3d at 592 (quoting Burdick, 504 U.S. at 434). The Second Circuit
summarized this framework as follows:
Under this balancing test, the State's reasonable and nondiscriminatory
restrictions will generally be sufficient to uphold the statute if they serve
important state interests. Review in such circumstances will be quite deferential,
and we will not require elaborate, empirical verification of the weightiness of the
State's asserted justifications. Nonetheless, where the burden imposed by the law
is non-trivial, we must weigh the State's justification against the burden imposed.
Price v. New York State Bd. of Elections, 540 F.3d 101, 109 (2d Cir. 2008) (internal quotation
marks and citations omitted).
The Supreme Court has squarely rejected "the erroneous assumption that a law that
imposes any burden upon the right to vote must be subject to strict scrutiny." Burdick, 504 U.S.
at 432. Indeed, "[s]tates may, and inevitably must, enact reasonable regulations of parties,
elections, and ballots to reduce election- and campaign-related disorder." Timmons v. Twin
Cities Area New Party, 520 U.S. 351,358 (1997); see also Clingman v. Beaver, 544 U.S. 581,
593 (2005) (same). Since election laws inevitably impose some degree of burden on the right to
vote, it follows that "not every limitation or incidental burden on the exercise of voting rights is
subject to a stringent standard ofreview." Bullock v. Carter, 405 U.S. 134, 143 (1972).

V.

NEW YORK HAS VIOLATED THE RIGHT TO VOTE BY NOT PROVIDING
THE INACTIVE LIST, AND MUST DO SO
Common Cause alleges that two ofNew York's policies violate the fundamental right to

vote: (1) the State's refusal to maintain the inactive list at polling locations, and (2) the State's

43

requirement that voters who are not listed on the active list must vote by affidavit ballot. The
Court applies the Anderson-Burdick framework to each of these policies. It concludes that both
policies burden voters. The former however does not advance any legitimate state interest, while
the latter advances several. The State's refusal to provide the inactive list therefore violates the
Fourteenth Amendment.

A.

New York's Refusal to Provide the Inactive List at Polling Sites Burdens Two
Sets of Voters

To start, it is important to identify the two classes of voters relevant to the Court's
analysis. The first is those inactive voters who continue to reside at their address of registration;
in other words, voters whom the State incorrectly marked as inactive. As noted, this population
consists of tens of thousands of New Yorkers. Mark Meredith testified that it contains 45,000
voters at a minimum. Meredith Deel. at 11-14; Meredith Supp. Deel. at 2. And the reason is
clear: the core proxies that New York uses to identify inactive voters, data from the Postal
Service and the National Change of Address registry, are both overinclusive, capturing thousands
of voters who have not moved. The second burdened population relevant to the Court's analysis
subsumes the first and is even larger-all New York voters.
Both populations are burdened by New York's refusal to provide the inactive list. The
Court begins with the former. In counties that do not provide the inactive list, inactive voters are
sometimes not offered affidavit ballots entirely, even though New York law gives them the right
to vote by affidavit. Indeed, these voters satisfy all the requirements to vote. They are
registered. They are at the correct polling location. They identify themselves to poll workers.
Yet because of the overinclusivity of New York's proxies, they find that they are not in the poll
book. And because of poll-worker error and confusion, they are not offered affidavit ballots.

44

These individuals are therefore improperly disenfranchised-and thus suffer perhaps the greatest
burden a state can impose on a voter.
Even if these voters do get an affidavit ballot, they face substantial delay in doing so.
The State requires a lengthy colloquy between a poll worker and a voter when the former cannot
find the latter in the poll book. N.Y. Elec. Law . § 8-302(3)(e); accord Connolly Deel.

,r 53; Def.

Ex. D, Mohr Deel., ,r 7. And poll workers often tack on additional questions of their own or call
the County Boards. Tr. 84:1-16, 85:21-25 (Martin). Moreover, poll workers are often confused
by voters who do not appear in the active registry. These voters can spend significant amounts
of time-up to an hour-receiving the affidavit ballot to which they are entitled. See AgroPaulson Deel.; Goldberg Deel.; Stewart Deel.; Pl. Ex. 55 at 15-18 (Audit Report). It also takes
these voters time to complete affidavit ballots. And that time varies with the voter's reading
comprehension and eyesight.
The State asserts that poll workers can mitigate these bur<lens on inactive voters by
consulting a map or street finder to look for voters' correct polling place, posting flyers
concerning affidavit ballots, giving voters a notice-to-voter form, and calling County Boards.
Def. Br. 18-19, 32. As noted, however, few voters testified that poll workers actually used these
tools. Valentine testified that there is no requirement that poll workers call election officials to
verify voters' registration status when they cannot find them in the poll book. Tr. 150:22-151:18
(Valentine). Indeed, workers may not have the ability to make phone calls at all. See Tr. 92:1220 (Martin). And these tools, including the street finder, do not assuage the confusion
experienced by voters who have not moved from their address of registration, are appearing at
the correct polling place, and do not find their name in the poll book. See Meredith Deel. at 2122; Wolfe Deel. ,r,r 10-14; Holman Deel. ,r,r 14-22.

45

These burdens then have ripple effects, burdening the second relevant group--all New
York voters. The idea is simple: delay for some creates delay for all. And Common Cause has
demonstrated this occurs across New York's polling sites. As poll workers struggle to process
inactive voters, they are unable to assist other voters, whether they appear on the active registry
or not. These ripple effects increase the time everyone spends at the ballot box attempting to
vote. And they increase the prospect of voters reneging, as this delay will dissuade certain
prospective voters from voting entirely. In short, the bandwidth of poll workers is limited, and
the opportunity cost of the time spent sorting out the affidavit-ballot process is that other voters
wait longer and may not cast a ballot at all. The State's decision not to provide the inactive list
therefore imposes substantial burdens.

B.

New York Demonstrates No State Interest Justifying Its Policy

The imposition of a burden, however, is not enough for the Court to strike down this
practice. Even severe restrictions on the right to vote can be justified by strong state interests.
The State points to several purported interests in not providing the inactive voter list at polling
locations. The Court addresses these in turn, and concludes that no state interest is advanced by
this policy.

First, the State argues that not having the inactive list ensures that people vote in the
location in which they are registered. See Def. Br. 21-24. This is certainly an important state
interest. Preventing mismatch between where voters vote and where they reside is critical to
representative democracy. But the Second Circuit has made clear that states must do more than
merely recite important interests to satisfy Anderson-Burdick scrutiny; they must show how their
conduct actually advances that state interest. "[T]he fact that the defendants asserted interests
are 'important in the abstract' does not necessarily mean that its chosen means of regulation 'will

46

in fact advance those interests."' Lerman v. Bd. of Elections in City of New York, 232 F.3d 135,
149 (2d Cir. 2000) (quoting Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994)).
The State relies heavily on the following theory: voters are "creatures of habit," and so
even when they move, they often return to their previous location. Ryan Dep. 90:2-6. New
York, however, does not persuasively explain why not listing inactive voters at the polls ensures
voters are at their correct polling site. To see why New York's policy does not further this
interest, the Court walks through a hypothetical. Assume that Voter A moves from Nassau
County to Westchester County. Now consider the following scenarios:

•

Voter A is on the active list. First assume that Voter A does not update her voter
registration, and none of the State's proxies is triggered. Voter A thus remains on the
active registry in Nassau County. On Election Day, Voter A drives back to Nassau
County and attempts to vote. She will still be on the active registry in her original Nassau
County election district. And she will be able to cast a regular ballot in that district-no
matter if the poll worker has the inactive list or not. With or without the inactive list, the
result is the same: Voter A votes where she is not supposed to.

•

Voter A is on inactive status. Now assume that Voter A's move did trigger a proxy, and
the State listed Voter A as inactive. Once again, the absence or presence of the inactive
list makes little difference.
o

The State does not provide an inactive list. In this scenario, assume that Voter A
arrives in Nassau County and finds that she is not on the active list. If there is no
supplemental inactive-voter list, the poll worker should ask Voter A where she
lives. When Voter A reveals that she has driven an hour from her home, the poll
worker should direct her back to Westchester and tell her to vote by affidavit in

47

her new election district. Under the State's universal-transfer policy, that vote
will be counted, reactive her as active, and update her registration with the new
address. As discussed above, however, all sorts of problems can arise at this step,
delay and confusion among them. It is possible that when the poll worker does
not find Voter A in the active registry, she expresses confusion, spends time
talking with other poll workers, calls over an inspector, calls the County Board,
directs Voter A to the wrong location, or perhaps even offers Voter A an affidavit
ballot (which would not be counted).
o

The state provides an inactive list. Now assume that the State provides an

inactive list. Once again, the poll worker does not find Voter A's name in the
active registry. She then checks the inactive list, and finds Voter A there. By this
point, the poll worker should know that Voter A lives in Westchester, and direct
her back to her new home. With or without the inactive list, the result for Voter A
is therefore the same. The State however is concerned that when the poll worker
discovers Voter A's name in the inactive registry, she will let her cast an affidavit
ballot in Nassau County. But that presupposes that the poll worker did not ask
Voter A her new address, which goes against the policies of the State and County
Boards. And it presupposes that the poll worker was not trained on how to use
the inactive registry or on universal transfer. And even if Voter A casts an
affidavit ballot, it would not be counted, thereby not diluting the votes of Nassau
County residents. True enough, Voter A's voice would not be heard, but it is not
clear that the chance of her receiving an affidavit is any greater in this scenario
than if there were no inactive list.

48

In short, the State has shown no justification for not providing the inactive list benefits a
voter who has moved and returns to her polling location. Whether that voter is inactive or active,
she receives no benefit from not having the list, and perhaps is harmed by the additional delay
and confusion that its absence causes.

Second, the State argues that its affidavit-ballot process is necessary to comply with the
National Voter Registration Act. And true enough, the NVRA requires that states engage in listmaintenance activities. The statute requires "each State" to "conduct a general program that
makes a reasonable effort to remove the names of ineligible voters from the official lists of
eligible voters by reason of ... a change in the residence of the registrant." 52 U.S.C.

§ 20507(a); Def. Br. at 3. But the NVRA merely lays out that requirement and then some outer
boundaries of what states cannot do in maintaining their lists. Like many federal election laws,
the NVRA leaves substantial discretion to the states. And the statute says nothing about the

precise restriction at issue here: not keeping a list of inactive voters at the polling site. Nothing
in the NVRA prohibits states from keeping such a list. Indeed, dozens of states in the nation do
provide this supplemental list. See PL Br. App. A, B (providing states that list inactive voters in
poll books on Election Day). The State thus cannot rely on vague assertions about NVRA
compliance to state a legitimate interest.

Third, the State argues that not providing the inactive list in fact increases efficiency at
the polls "because it gives poll workers, who have limited bandwidth, a binary choice when a
voter votes: 1) the voter is on the list; give them a [regular ballot]; or 2) the voter is not on the
list; ensure they are in the correct poll site and, if so, offer them an affidavit ballot." Def. Br. 12. This argument fails. Assume that a County provides the inactive list at polling locations. Poll
workers would still have a limited set of options: If the voter is on the active list, she should be

49

given a regular ballot. If the voter is on the inactive list, she should be given an affidavit ballot.
And if the voter is on neither list, she should either be redirected to another polling location or
given an affidavit ballot (as the lists may be erroneous or the poll worker may have failed to
locate her name). The State's theory about efficiency therefore does not hold up. Moreover, the
evidence adduced at trial suggests that the State has it backwards: providing the list in fact
benefits poll workers by reducing delay and confusion. Indeed, Martin testified at length to the
positive benefits Columbia County has received by providing the inactive list. The limited
bandwidth of poll workers, therefore, does not counsel against providing the inactive list-it
counsels in favor of it.
The legitimacy of the State's interest is further undercut by evidence from other states.
Dozens of other states list inactive voters in the poll books used at precincts on Election Day. Pl.
Br. App. A, B. The State does not dispute that New York is an outlier in this regard, or claim
that it faces problems regarding voter movement any different from its sister states. The fact that
most states have rejected New York's approach suggests that excluding inactive voters is not
required to achieve the State's purported aims. In short, the State does not demonstrate that its
policy of not providing a list of inactive voters advances any state interest.

C.

New York's Refusal to Provide Inactive Lists at Polling Sites Therefore Fails
Scrutiny

Having identified the burdens imposed by, and the interests in favor of, New York's law,
the Court can now apply the Anderson-Burdick framework. Under the test, the applicable tier of
scrutiny is determined by how heavily the right is burdened. The parties thus spend substantial
energy debating the tier of scrutiny that applies here. Common Cause argues that New York's
refusal to provide the inactive list disenfranchises some voters, and thus imposes a severe burden
and requires application of strict scrutiny. Pl. Br. at 4. The State counters that its policy is a
50

reasonable and non-burdensome regulation, and therefore requires either "rational basis review
or, at most, lenient middle-tier review (well towards the deferential end of the spectrum)." Def.
Br. at 19.
Given that New York's prohibition on providing the inactive list burdens its voters,
rational basis does not apply. But the Court need not decide whether strict or some form of
intermediate scrutiny governs, because the law cannot withstand any level of scrutiny. New
York's policy burdens voters, and the State provides no legitimate interest to justify that burden.
Indeed, when pressed at trial to provide a legitimate interest, the State was repeatedly unable to
do so. See, e.g., Tr. 474:3-12. New York then argued that "the state doesn't necessarily need an
interest for not providing a particular piece of information," i.e. the names of inactive voters. Tr.
474: 17-20. The State is incorrect. Election decisions that burden the fundamental right to vote
must be justified by legitimate state interests. None is provided here. The Court therefore
concludes that New York's policy of not providing the inactive voter lists is unconstitutional.

D.

The Appropriate Remedy is for New York to Provide the Inactive Voter List

Because New York's refusal to provide the inactive list violates the Fourteenth
Amendment, the appropriate remedy is for New York to provide the list. The State may choose
whether it wishes to do so by including the names of inactive voters in the registered-voter poll
book or by following the example of Nassau and Columbia Counties and creating supplemental
lists made available to poll workers at the poll site. Either way, the result is the same: poll
workers will be able to identify inactive voters, inform them of their inactive status, and
determine where they should vote and whether they should cast a regular or affidavit ballot.
As noted, the record makes clear the benefits that derive from provision of the inactive
list at polling locations. The first step poll workers must take when a voter enters a polling site is
to determine whether that voter is at the correct location. Without including inactive voters in a
51

supplemental poll book, poll workers are unable to determine whether a potential voter is not
listed in the poll book because she (1) is in the wrong polling place, (2) is an inactive voter who
is eligible to vote at that polling place, (3) is not registered at all and therefore cannot vote at any
polling place, or (4) for some other reason. Trial Tr. 151 :13-18 (Valentine) (agreeing that under
the State's approach "poll workers have no way of knowing whether a voter arriving at a polling
place is not in the poll book because he or she is in inactive status or because he or she never
registered to vote, or he or she is not in the poll book for some other reason, correct); Pl. FIF at
27; Def. FIF at 20. Having a supplemental poll book will remove the second category. Poll
workers will thus be more likely to offer an inactive potential voter who is at the correct polling
site an affidavit ballot. Providing the list will also prevent some affidavit ballots from being
rejected for being cast at the wrong location. For example, if Lauren Wolfe was on an inactive
list, she likely would have cast her ballot at the right voting location.
The State will face a reduced burden in implementing inactive poll books, as State
Boards are increasingly starting to use electronic poll books. Def. FIF at 15. And the Court
encourages the State to provide the list of all inactive voters on electronic poll books. Such a list
could help not only those voters who arrive to vote in their correct election district, but also those
who are inactive and go to the incorrect polling location. And this list would be especially useful
given the universal-transfer law; if a poll worker finds that a voter has moved and appears to vote
at her new location, the worker can inform the voter that her affidavit ballot in the new location
will be counted and update her registration. But the Court does not order the State to do so,
because the record suggests that not all County Boards have switched over to electronic poll
books, and a printed registry of the State's one-million inactive voters would be impossible to
print or use effectively. Def. FIF at 15, Tr. 364:14-365:15 (Meredith) (noting that such a list

52

would be enormous and have "too much information for a poll worker to handle," but stating that
the "advent of electronic poll books" may allow the State "to provide a broader list").

VI.

NEW YORK HAS NOT VIOLATED THE FUNDAMENTAL RIGHT TO VOTE
BY USING AFFIDAVIT BALLOTS
Common Cause also challenges the State's use of affidavit ballots as unconstitutional.

The Court rejects this challenge. Although affidavit ballots impose burdens on voters, the State
has multiple, weighty interests in using affidavit ballots and not permitting all voters who present
themselves at the polls on Election Day to vote by regular ballot.
To be sure, as the Court has discussed repeatedly, affidavit ballots burden voters. They
take longer to complete than regular ballots. Tr. 316:20-37 (Brehm); Tr. 154:17-23 (Valentine);
Ryan Dep. 51:12-19. For example, completing the affidavit ballot took Holman an additional
"[f]ive, ten minutes." Id. 31 :2-4. Meredith testified that "the amount of time it would take to fill
out an affidavit ballot would depend heavily on someone's reading comprehension ... the type
[on the ballot] is small." Tr. 316:25-317:12. In other words, "filling out an affidavit ballot [is
not] equally burdensome for all voters," and the time involved will depend on reading level,
eyesight, and whether the affidavit ballot is offered in the voter's preferred language. Tr. 252:310. And this extra time can create delay for all voters and lead voters to renege.
The State however asserts several legitimate interests to justify its policy of using
affidavit ballots. First, the State argues that "[r]equiring inactive voters to vote via affidavit
ballot causes the inactive voter to affirm that they are living at the same address and gives
election administrators an opportunity to validate the voter's information." Def. Br. 21. As
noted, New York has an important interest in ensuring that only voters who are properly
registered to vote in a location vote in that location. And it has an important state interest in
prohibiting voters from voting in locations where they do not reside. Indeed, these dual interests
53

are two sides of the same coin. Michael Ryan stated that this is "the best function of the affidavit
process, because people do move around and they should vote at their new location." Ryan Dep.
89:23-27. He explained that "people, being creatures of habit often don't vote at their new
location and go back to their old location" and cast a regular ballot. Ryan Dep. 90:2-6. As
discussed, states have a strong interest in ensuring voters vote where they live. And as the State
points out, allowing non-residents to vote in an election district would dilute the vote of those
who actually reside there. Def. Br. 22-23.
Once again, it is useful to return to the hypothetical Voter A. Assume first that Voter A
moved from Nassau County to Westchester County without updating her registration. If she
attempts to vote at her new home, she will not be on the active or inactive lists. She can then
inform the poll worker that she recently moved and cast an affidavit ballot. Under the State's
universal-transfer policy, that affidavit ballot will be counted and update her registration. And if
Voter A attempts to vote in Nassau County, the poll worker should not offer her an affidavit
ballot. But even if the worker does, the State will reject her affidavit, as she no longer resides in
Nassau County. In either situation, a regular ballot would not serve the State's interest. If she
voted in Westchester by regular ballot, she would remain inactive in Nassau County and her
registration would not be updated to active status with her new address. And if she voted by
regular ballot in Nassau County, her vote would count, diluting the vote of that election district's
residents. Affidavit ballots therefore advances the State's legitimate and important interest in
ensuring that voters who move do not cast valid ballots in their old election districts.
Second, affidavit ballots also serve as a check on poll-worker error. Several state
officials testified that poll workers sometimes fail to locate active voters in the poll book, even
though that voter is properly registered and in the correct location. Tr. 88 (Martin); Ryan Dep.

54

50: 14-51: 19 (noting that this "is a common error"). Poll workers are directed to give such voters
an affidavit ballot, and their vote should be counted. Id. 51: 12-19. In the absence of an affidavit
ballot, however, a voter erroneously not found in the poll book may not be permitted to vote at
all. Affidavit ballots thus serve as an error-correction mechanism and allow such individuals to
cast a ballot. Ryan explained that affidavit ballots are necessary in these "circumstances of poll
worker error ... because it provides [these voters] an avenue to exercise the franchise." Ryan
Dep. 126:13-127:7.
Third, affidavit ballots also help New York effectuate its state interest in regulating the
primary system. New York has closed primaries, meaning that only registered voters who have
indicated they are members of a particular party can vote in that party's primary. Tr. 312: 13-18
(Meredith). Yet voters at times attempt to vote in the primaries for parties for which they are not
registered. Tr. 313:11-16 (Meredith); Ryan Dep. 175:3-177:17. The voter will not appearin the
poll book, but if she insists on voting, she is to be given an affidavit ballot. Ryan Dep. 48:850: 13. The affidavit ballot can thus be a tool to sort out which voters are properly registered;
poll workers can provide voters who do not appear on the party's list with a ballot, that voter can
cast an affidavit ballot, and then the State can later determine whether the voter is in fact a
registered member of the relevant party. Tr. 313: 17-22 (Meredith).
Fourth, affidavit ballots help the State comply with federal law. The NVRA "erect[s] a
complex superstructure of federal regulation atop state voter-registration systems." Arizona v.
Inter Tribal Council ofAriz., Inc., 570 U.S. 1, 5 (2013). The statute has two primary goals:

increasing voter registration and removing ineligible persons from the States' voter registration
rolls. 52 U.S.C. § 20501(b) (listing these purposes).

55

The Supreme Court analyzed the NVRA at length in Husted v. A. Philip Randolph
Institute, 138 S. Ct. 1833 (2018). The plaintiffs in that case challenged Ohio's process for

identifying voters who may have moved and removing them from the rolls as violative of the
NVRA. The Court explained that Congress passed the NVRA out of a concern that states were
removing voters who they thought had moved from the rolls without providing those voters any
written notice. Id. at 1838. The NVRA thus lays out certain requirements states must satisfy
before removing a voter from the rolls because of a perceived change in residence. Id.
§§ 20507(b), (c), (d). The Court explained that "the provision of the NVRA that directly
addresses the procedures that a State must follow before removing a registrant from the rolls on
change-of-residence grounds, provides that a State may remove a registrant who '(i) has failed to
respond to a notice' and '(ii) has not voted or appeared to vote ... during the period beginning
on the date of the notice and ending on the day after the date of the second general election for
Federal office that occurs after the date of the notice' (about four years)." Id. at 1841 (quoting
52 U.S.C. § 20507(d)(l)(B)). Voters who do not respond to the confirmation notice can be
removed from the rolls only if they fail to vote in two general federal elections and do not
otherwise inform the state they have not moved. "Only if the registrant fails to vote during that
period and does not otherwise confirm that he or she still lives in the district (e.g., by updating
address information online) may the registrant's name be removed." Id. at 1839-40 (citing
§§ 20507(d)(2)(A); (d)(l)(B), (3)."
The Court recognized that "States take a variety of approaches" in complying with the
NVRA's requirements. Id. at 1839. In other words, the NVRA sets the floor for how states
conduct list maintenance; states have discretion to choose how precisely to follow its
requirements. See id. But the Court made clear that compliance is not optional: the NVRA

56

requires states to "conduct a general program that makes a reasonable effort to remove the
names" of voters who are ineligible "by reason of' death or change in residence. § 20507(a)(4).
And the statute states that "[n]ot only are States allowed to remove registrants who satisfy these
requirements, but federal law makes this removal mandatory." § 20507(d)(3) (emphasis added).
After the NVRA was passed, New York enacted its affidavit-balloting scheme to bring
the state into compliance. The NVRA's legislative history expressly contemplates the use of
provisional ballots for voters who do not respond to states' mailings, like inactive voters in New
York, as a mechanism for compliance. The House Report provides: "However, while [the
NVRA] sets out where an individual may vote, it is silent as to how that individual may be

permitted to vote. Under certain circumstances it would be appropriate, and in compliance with
the requirements of this Act, to require that such a person vote by some form of provisional

ballot." H.R. REP. 103-9, 17-18, 1993 U.S.C.C.A.N. 105, 121-22 (emphases added). Indeed,
another federal statute, the Help America Vote Act, directly envisions states using provisional
ballots and provides various requirements these ballots must comply with. See 52 U.S.C.

§ 21082 (laying out "Provisional voting requirements"). Federal law thus imposes a floor for
how states can conduct list maintenance and permits the use of provisional ballots. New York's
affidavit-ballot process is supported by a state interest in following these federal directives.
Under the Anderson-Burdick framework, the State burdens voters through its use of
affidavit ballots. But New York has weighty interests justifying that practice: affidavit ballots
ensure voters are in the correct polling location, comply with federal law, and help regulate its
closed-primary system. No matter what tier of scrutiny applies, those interests are sufficient for
the law to survive review. In sum, New York has not violated voters' fundamental right to vote
by requiring some voters to use affidavit ballots.

57

VII.

COMMON CAUSE HAS ALSO PROVEN SEVERAL DE FACTO NVRA
VIOLATIONS
Section 8 of the NVRA addresses the procedures a state must follow before it may

remove an eligible voter from the official list ofregistered voters. 52 U.S.C. § 20507. In
relevant part, Section 8 provides that a state may not remove a registered voter from the official
list of registered voters based on the belief that a voter has changed residence unless (1) the voter
confirms in writing that he or she has moved to a new jurisdiction or (2) the voter has failed to
respond to a notice seeking confirmation that the voter continues to reside in the jurisdiction and
the voter fails to vote in two consecutive general elections for federal office. 52 U.S.C.

§ 20507(d). The first half is not relevant here. As applied to New York, the second half captures
inactive voters. Under the State's regime, most inactive voters have failed to respond to
confirmation notices; if they had, they would have been relisted as active. The State therefore
cannot disenfranchise these voters until they fail to vote in two consecutive federal general
elections. Id.
Common Cause argues that New York effectively removes inactive voters from the
official list. In its earlier Order, the Court identified several allegations that, if proven true, could
support a de facto removal claim: (1) state poll workers "routinely" informed inactive voters that
they were not registered to vote; (2) state poll workers failed to inform inactive voters that they
may vote by affidavit ballot; (3) state poll workers failed to offer inactive voters affidavit ballots;

(4) state poll workers offered voters affidavit ballots only at their "insistence." See Dkt. No. 58
at 25-26.
Common Cause has identified three voters as to whom the State violated its obligations
under the NVRA. Stephanie Goldberg was listed as inactive and should have been offered an
affidavit ballot at the polling site, but poll workers failed to provide her one. See Goldberg Deel.
58

,r,r 15-21.

Goldberg was thus disenfranchised before she failed to vote in two federal general

elections, thereby violating the NVRA. Moreover, Angela and Denise Roberts were listed as
inactive and cast affidavit ballots, but the State rejected their ballots for no legitimate reason.

See D. Roberts Dep. 51:5-17; D. Roberts Deel., ,r,r 11-20; A. Roberts Deel., ,r,r 25-35; Tr.
107:13-108:7 (Connolly). State officials provided no explanation for why these affidavit ballots
were not counted, and thus these voters were improperly disenfranchised in violation of the
NVRA. See Ex. P230, Toombs Deel. ,r 12 (stating "it appears that [Denise Roberts'] affidavit
ballot cast in 2016 was not counted. It should have been. This was an error and we are very sorry
that it occurred."). In reference to Stephanie Goldberg, Denise Roberts, and Angela Roberts, the
State concedes that "Plaintiff does submit three declarations where there was clear error." Def.
Br. at 33.
The Court thus grants Common Cause's request for a declaration that "Defendants have
violated Section 8 of the NVRA by denying eligible voters the right to vote based on a purported
change in residence without following the procedures set forth in 52 U.S.C. § 20507" as to these
three individual voters. The Court does not address Common Cause's further request for
injunctive relief and monitoring under the NVRA, as any such relief is redundant with the relief
ordered under the Fourteenth Amendment.

VIII. CONCLUSION
The Court concludes that New York's refusal to provide inactive lists at polling locations
violates the Equal Protection Clause. The State is therefore ordered to provide the names of
inactive voters registered to vote in a particular election district to the poll workers of that
election district. The Court further concludes that the State's affidavit-ballot process does not
violate the Fourteenth Amendment. And the Court identifies three discrete voters as to whom
the State violated the National Voter Registration Act.
59

In its Amended Complaint, Common Cause requested the award of "the costs and
disbursements incurred in connection with this action, including, without limitation, their
reasonable attorneys' fees, expenses, and costs." Dkt. No. 72 at 18. If Common Cause continues
to seek this award, it is ordered to detail its expenses and submit letter briefing justifying its
request no later than three weeks from the date of this Order. The State may submit its briefing
regarding Common Cause's request no later than three weeks after that. Common Cause may
then submit a reply no later than one week after that.
The Court retains jurisdiction to monitor the State's compliance with the terms of this
Order. The Clerk of Court is respectfully ordered to enter judgment. This also resolves Dkt. No.
144.
SO ORDERED.

Dated: January

\2-, 2020

New York, New York

ALISON J. NATHAN
United States District Judge

60