The Provisional and the Personal

The Queens D.A. Recount Reminds Us That the NYC Board of Elections Has the Power to Throw Away Votes Over Nothing

The full recount that began Tuesday in the Queens district attorney race brings up a lot of feelings for me. I don’t live in Queens, nor do I have a ton invested in whether Tiffany Cabán or Melinda Katz wins that county’s top prosecutor post. But a key dispute in this recount gives me all the angries because I know the sting of having your vote thrown out by the New York City Board of Elections.

The 2019 Queens district attorney primary has brought national attention to the NYC Board of Elections’ policy of tossing out affidavit ballots that have minor, easy-to-make errors on them.

An automatic recount was triggered in the Queens DA Democratic primary last week when Borough President Melinda Katz pulled ahead by just 16 votes over newcomer Tiffany Cabán. The Queens branch of the Board of Elections is now in the midst of its manual re-tallying of all 91,00 machine-fed ballots in this race, with lawyers from the Cabán and Katz campaigns there to oversee and argue over each one. However, this process does not include the 2,300 provisional, or affidavit, ballots that the BOE threw out. After learning of the BOE’s decision to discard this huge trove of votes, the Cabán team asked a Queens Supreme Court judge to mandate a complete reassessment of all provisional ballots. Many of the affidavits submitted were disqualified over meaningless technicalities and easy-to-make mistakes — just like mine was in 2018 — highlighting an area where the BOE enjoys unchecked power.

Affidavit envelopes are handed to voters at the polls when their names cannot be found in their district’s poll book for any reason. An affidavit voter fills in the same ballot as everyone else, but instead of feeding it into a scanner, they put their ballot inside this envelope, which has a detailed legal form on the front. They then hand the completed, sealed envelope to a poll worker for placement in a special bin. By filling out this affidavit form, the voter swears they are an eligible voter in that election. The Board of Elections then verifies the affidavit against government records before counting the vote inside. The board can reject your affidavit if you are found to be lying or otherwise ineligible to vote in that race — for example, if you’re not a registered Democrat, but you’re trying to cast a vote in a Democratic primary.

I had to fill out an affidavit ballot in New York’s September 2018 Democratic primary because I had moved just a few weeks before. I had updated my registration online, but my new address had not made it into the paper-printed poll book at my Brooklyn polling station. The form on the affidavit envelope is not easy to fill out. It’s densely packed and has misleading questions. I had missed the blank that said “Party enrollment _____.” It was printed in a much smaller font than the other questions and was hidden away on the right side of the page. Further down the form, I filled in a much more prominently printed section labeled “Political Party.” It was clearly set off by boundary lines, was printed in a normal-sized font, and included several checkboxes reading “Democratic Party,” “Republican Party,” “Green Party,” etc. By checking the box labeled “Democratic Party,” I thought I was filling out the form correctly, and was truthfully testifying that I was eligible to vote in that primary. All the BOE now had to do was check my NY State records to verify.

A month later, I got a letter from the BOE telling me my vote “could not be counted.” There was a photocopy of my affidavit attached, stamped “INVALID.” I was apoplectic. Despite my being a registered Democrat in New York for over 15 years, that tiny, easy-to-miss “Party enrollment” line I’d skipped was enough to disqualify me from voting. That blank space was circled with a pen. The section I had filled out, “Political Party,” only indicated what party I’d like to be registered with for the next election. Over a hundred voters in the Queens DA race had their affidavits invalidated for the same reason.

I felt violated when I got that letter. I had spent weeks researching my candidates. It was a massive state primary comprised of nearly 10 high-powered races, including those for governor, lieutenant governor, attorney general, state senator, assembly member and civil court judges. Even if none of my candidates won, it felt good to participate in a complex primary that had so many important issues at stake, and to have done the homework I normally would have neglected. Now it felt like I’d been told to vote, voted, and was disqualified because the BOE hadn’t said “Simon Says.”

Before handing my affidavit over, I had asked a poll worker to make sure I’d filled it in correctly. She said I had. I trusted her.

“New York state does not have the strongest reputation in the election administration community,” said Paul Gronke, an election expert and political science professor, in an interview with Gothamist. “I am not surprised to learn that many voters received bad directions — likely from poll workers due to inadequate training — about provisional voting.”

The BOE could have easily checked my state records to confirm that I was a registered Democrat. A blank line on a form should not have disqualified me. Though I had partly blamed myself for missing that line, the reporting on the Queens DA race reassured me that I was not alone. Many others did the same, possibly in the hundreds, resulting in their rights being quashed. It’s this brand of all-or-nothing bureaucracy that fuels voter suppression. A government stickler can claim that you missed a spot on a poorly designed form, even though everything else in your submission is verifiable and well intended. 

Most people who are forced to fill out provisional ballots have never done so before and confusion is commonplace. And, according to election analysts, people filling out these affidavits tend to be newer voters, or at least new to their districts, which means they’re on the younger side and less inclined to vote for long-term incumbents or party insiders. It’s not hard to see how the BOE’s mass discarding of affidavits has led to cries of unfairness from supporters of Cabán, a public defender who ran on a platform of drastic criminal justice reform.

The Queens Supreme Court has agreed to a judge-supervised reassessment of all 2,300 discarded affidavit ballots in the DA race. Each affidavit will be checked, and a specially appointed Brooklyn judge will determine if missing a hard-to-see line is a good enough reason to throw out a vote. Whatever the court rules will be applied to all similar ballots. However, this affidavit recount will take place after the BOE completes its manual recount of the 91,000 machine-read votes, a procedure that may take weeks.

No matter who comes out on top in this race, Katz or Cabán, I hope the current media attention on affidavit voting will help put an end to the Board of Elections’ wholesale dumping of ballots that contain honest and easy-to-make mistakes. There must be more than one qualifying factor in determining a voter’s eligibility, and more than a single pair of tired eyes on a form that decides whether a citizen’s vote is worth honoring.