(photo: Michael Appleton/Mayoral Photography Office)
New York City may soon take several steps toward strengthening the power of the Civilian Complaint Review Board, or CCRB, the agency responsible for investigating misconduct allegations against police officers.
Voters have the opportunity to approve or reject a package of CCRB-related measures on this fall’s ballot, just months after the Board played a consequential role in the high-profile trial of Officer Daniel Pantaleo, resulting in his firing by NYPD Commissioner James O’Neill.
The 2019 New York City Charter Revision Commission has placed five “yes” or “no” questions on this fall’s ballot, one of which includes five proposed CCRB reforms. Perhaps the most controversial of the five is expanding the jurisdiction of the Board to include investigating some instances of suspected lying by police officers. It is a step police reform advocates say is important but which has limitations that illustrate the city’s caution toward tightening the reins on police misconduct.
The ballot question, which will be the second of the five presented to voters during early voting or on Election Day, also includes expanding the size of the Board and changing certain appointment processes; giving the CCRB a budget large enough to hire staff of a certain size relative to that of the NYPD force; providing the CCRB executive director subpoena power; and requiring that the police commissioner provides written explanation to the CCRB when the commissioner “intends to depart or has departed from discipline recommended by the CCRB” or by one of the NYPD’s top internal trials officials.
The proposals, which will pass or fail together, could significantly impact the performance of the Board in its work to hold officers accountable in cases of alleged excessive force, abuse of authority, and other specifically-outlined examples of possible misconduct. They are being put before voters, along with other changes to city elections and governance, during what is expected to be a very low-turnout election and amid heightened attention, both in New York City and nationally, toward police misconduct, transparency, and consequences for officers who break their pledge to protect and serve the public.
In sum, the reforms amount to changes that CCRB officials and police accountability watchdogs believe would help the board operate more efficiently and independently.
“I think on the whole they are good for the agency and will help to advance civilian oversight of certain disciplinary aspects of the NYPD, those that fall within our jurisdiction,” said Fred Davie, the chair of the CCRB appointed by Mayor Bill de Blasio, in an interview with Gotham Gazette.
The CCRB is a police oversight agency made up of civilians that falls outside the NYPD but is part of the disciplinary framework for officers accused of certain kinds of misconduct. Agency staff and the Board it reports to are empowered by the City Charter to investigate complaints of officers using unnecessary force or abusing their authority as police and recommend discipline to the police commissioner.
Davie said there has not necessarily been a proliferation of false statements made by officers during the course of the Board’s investigations, “but where there might be, we should be able to investigate that and then work out the appropriate discipline to recommend to the police commissioner.” That power is currently beyond the Board’s reach.
The false official statements provision is the only one that actually expands the Board’s jurisdiction. The rest have to do with CCRB operations, though they also have the potential for significant impact.
On the proposal related to guaranteeing a CCRB budget tied to NYPD headcount, Davie said it will provide a baseline in budget negotiations and “increase the agency’s stability and effectiveness.”
The proposed changes to the size of the Board and structure of appointments to it would limit the influence of the mayor -- who also appoints the police commissioner -- and give the City Council far more power in selecting appointees, including the chair. It would also add an appointee by the public advocate.
The Charter Revision Commission this year was chaired by an appointee of City Council Speaker Corey Johnson, and was balanced with other appointments made by the mayor, public advocate, comptroller, and borough presidents, with no one authority having a majority (though all but one are Democrats). It tackled a wider range of charter issues in its public hearings than previous commissions appointed by mayors, including some targets that have never before been touched.
The commission ultimately came up with 19 proposals in the form of five ballot questions dealing with elections, the CCRB, ethics, the city budget, and land use, all of which are expected to be approved by voters. There has been little public push for or against any of the five sets of reforms, other than a coalition organized to seek passage of ranked-choice voting for certain city elections, which will be question one on the ballot.
The potential changes to police oversight, many of which have long been supported by reformers, are modest enough to have avoided a concerted public effort to defeat the proposals, particularly from the labor unions representing NYPD officers. The Police Benevolent Association, the largest police officer union, did not return a request for comment for this article.
False Official Statements
“The proposed reform related to the CCRB obtaining authority to prosecute officers who lie during the investigation process is by far the most important charter amendment for voters to look for this [fall],” said Cynthia Conti-Cook, an attorney at Legal Aid Society with experience litigating police transparency matters.
The CCRB was established in its current all-civilian form (former NYPD officers are regularly appointed by the police commissioner) in 1993 to investigate complaints made against officers from outside the NYPD. Over the years its budget has increased and its authority expanded to allow it to prosecute substantiated cases in a police trial setting.
Its jurisdiction is restricted to “FADO” -- unnecessary force, abuse of authority, discourtesy, and offensive language -- complaints, which must be made by civilians in order to be investigated. The charter amendments would, among other things, expand that jurisdiction to include lying to CCRB investigators.
But the reform does have significant limits. It applies only to the police officer(s) originally under investigation and not to any other officers who may provide false testimony related to the inquiry. Even if the CCRB has proof that an officer lied to its investigators, it has no ability to initiate a new case on the matter.
This means that police witnesses who lie to protect a colleague under investigation or to shield their own behavior, when not the subject of an ongoing investigation themselves, can do so without recourse from the CCRB.
Currently, when the CCRB has evidence of an officer lying, it refers the case to the NYPD’s internal affairs bureau where it gets dealt with out of public view. Because of a provision in the state’s Civil Rights Law known as Section 50-a, any discipline issued by the police department, including any action against dishonest officers, is sealed.
Limits of CCRB Proposals
Gail Benjamin, the chair of the Charter Revision Commission that created the ballot proposals, told Gotham Gazette the body was limited in how much it could expand the authority of the CCRB to investigate misconduct because of a catch-22 involving the complaint-initiated nature of the agency’s mandate.
“Because the CCRB can only investigate based on a complaint and a complainant, if there are other officers, somebody else would have to complain about them in order for the CCRB to have jurisdiction. Their jurisdiction, as I said, is only over FADO and other officers would be outside of that," she said in an interview.
A State Supreme Court ruling from February determined that the City Charter barred the CCRB from initiating an investigation or gathering evidence without first receiving a complaint. But because this is an issue of the City Charter and not state law, the Charter Revision Commission had the authority to deal with it.
“To the extent that that is a limitation of the Charter then the Charter Revision Commission could have looked at altering those provisions in order to expand the CCRB’s mandate, but didn’t in this case,” said Michael Sisitzky, lead policy counsel at the New York Civil Liberties Union (NYCLU), in an interview. He said he is not aware of any state law that would prevent the CCRB from beginning an investigation without a civilian complaint.
“I can't say that that was an issue that came up. What came up was how to affect the greatest change. I'm not sure what would have happened if it had,” said Benjamin.
“I'm not sure we would even have the jurisdiction,” she added. “It's a very complicated question to change and pull out one thing."
“I think to me the emphasis was on materiality,” Carl Weisbrod, a commissioner appointed by de Blasio, told Gotham Gazette in a brief interview. “The person who is being looked at at the CCRB is the officer who is under investigation, and that I think was the rationale.”
‘We haven’t seen that willingness’
The commission’s relatively narrow expansion of the CCRB’s jurisdiction is in some ways characteristic of the history of resistance to bringing police oversight outside of the purview of the police department itself.
From the early days of investigating civilian complaints in the mid-1960s when the powerful Patrolmen’s Benevolent Association fought to keep the function within the NYPD, to earlier this year when Gotham Gazette reported on the secret effort by de Blasio administration officials to lobby commissioners to scuttle the provision related to officer lying -- attempts to create a police accountability framework independent of the NYPD has met resistance. Only after a second vote and a change of heart this year did the commissioners move to place false official statements on the ballot in its circumscribed form.
Other measures sought by police reformers never made it onto the ballot. Things like bringing school safety agents and other peace officers under the jurisdiction of the CCRB were proposed but never taken up. High on the list for reform advocates was codifying the CCRB’s administrative prosecutorial unit (APU), through which the CCRB prosecutes cases of misconduct when the Board is seeking the highest forms of discipline.
Currently governed by a memorandum of understanding, the CCRB’s APU provides a layer of oversight that can have large consequences. It was the APU that brought charges against Officer Pantaleo for Garner’s death, which led to a guilty verdict by the NYPD trial judge and Commissioner O’Neill to dismiss Pantaleo from the force this summer.
Only one provision in the APU agreement was picked up by the Charter Revision Commission to be codified in the Charter despite advocates pushing for more. Under the proposed amendments, the police commissioner will be required to explain in writing to the CCRB in any instance when deviating from a disciplinary recommendation, as is currently required under the memorandum of understanding.
“I think it’s disappointing on the one hand that we haven’t seen that willingness to take on expanding the CCRB’s mandate,” said Sisitzky, especially on the issue of peace officers and on strengthening the board’s “ability to actually make discipline stick.”
“But I don’t want that to take away from the fact that there are important changes being proposed to the CCRB as part of this ballot measure that we support and want to see enacted,” he said.
Layers of Accountability
To reform advocates, the changes made to give the CCRB greater sway in the Sity Charter are important but limited in their impact because state law gives the police commissioner the ultimate authority to discipline members of the force.
“The CCRB is ultimately not given more teeth in terms of being able to enforce penalties, but allowing an independent agency to conduct investigations into false statements made to that agency is still an important way for the agency to have increased authority to hold officers accountable,” said Sisitzky.
NYPD officials have expressed concerns about the package of amendments and said that the system of referring cases of misconduct to the department’s internal affairs team works well, especially in instances of false official statements. “Currently, the CCRB has been integrated into this framework and makes referrals to Internal Affairs when it suspects an officer has made a false statement during its investigation,” wrote Al Baker, the NYPD’s director of media relations, in an email.
“Going forward, it is imperative for the integrity of our criminal justice system that a uniform standard remain in place when assessing the serious issue of officer credibility," Baker added.
According to police reform advocates, however, the current system is not doing enough to curtail police lying to the CCRB. “The fact that false statements made it into the ballot is incredibly important because false statements are given in almost every police killing and misconduct case our members have worked on,” said Joo-Hyun Kang, director of the advocacy coalition Communities United for Police Reform, in an interview.
Over 130 cases of police making false official statements to CCRB investigators were referred to the NYPD between 2014 and 2018 (nearly half of which occurred in 2015 alone), according to a report provided by the CCRB. That figure includes only the cases where the CCRB had enough evidence to prove an officer lied without initiating a separate investigation into the matter.
Officer credibility is also a concern for New York City prosecutors, who often rely on police testimony at trial. WNYC reported in April that district attorneys in all five boroughs kept files of police dishonesty and Bronx DA Darcel Clark recently released a large portion of her office’s files to Gothamist following a Freedom of Information request.
City Council Member Joe Borelli, a Republican representing parts of Staten Island and a candidate this fall for New York City Public Advocate, is opposed to expanding the authority of the CCRB in many ways, saying he’s voted against giving the agency the power to prosecute misconduct and supports limiting the scope of “what it can do unilaterally against police officers.” Borelli told Gotham Gazette he would be voting against the CCRB ballot proposals.
But he backs the measure to allow the CCRB to pursue cases of police lying, he said. “If that was a stand-alone bill I’d probably support that,” he said in an interview.
“Because what is the point of having a court if you can’t validate a statement people make while they are swearing...before it. That to me is not a problem,” he said.
Layers of Obfuscation
In the interview, Borelli ruminated on whether police witness testimony in CCRB investigations was that important. “With all the video evidence we have now of most incidents with body cameras, usually the fact pattern is pretty established,” he said.
But establishing the facts through video evidence is a difficult task for the CCRB, Board representatives have said, and one that has led agency officials to push for other reforms on the ballot.
CCRB Executive Director Jonathan Darche testified before the Charter Revision Commission in March about the need for the agency’s highest ranking staff to have subpoena power. Currently, the CCRB chair can sign subpoenas after a vote of the Board, at times creating a period during which material evidence may be lost.
Many of the subpoenas the Board issues are to government agencies or businesses for evidence, especially video surveillance, which don’t necessarily have a system for preserving recordings, according to Davie, the Board’s chair. The Charter Revision Commission proposal will allow the CCRB to delegate its subpoena power to the executive director so the agency can more quickly respond to and acquire potential evidence.
The CCRB also has trouble obtaining body-worn camera footage from the police department, noted CCRB communications director Colleen Roache, despite the Charter-mandated duty to cooperate with the Board’s investigations. Since the complete rollout of body-worn cameras to NYPD patrol officers in March, month-to-month between 29 and 37 percent of CCRB investigations have pending footage requests with the NYPD. Roughly 13 percent of cases are pending for more than 90 days. The NYPD has not put forth publicly any formal policy for releasing body camera footage to the CCRB or the public at large.
“The step that has been taken helps,” Davie told Gotham Gazette, referring to the false statements ballot proposal. “It’s a step in the right direction, and if expanding it makes our ability to do our job better then of course we would not be opposed to that.”
Another layer of obfuscation is Section 50-a, the part of state law that prevents public disclosure of police disciplinary records, which the Charter Revision Commission does not have the power to suggest changing via ballot referendum. Because of Section 50-a, the public has no ability to see the outcome of CCRB investigations, even when it substantiates complaints of misconduct.
“If we should ever be able to repeal 50-a, [the false official statements amendment] might even add a little more transparency,” said Davie. Davie has never taken a public position on Section 50-a “other than recognizing the challenges it poses to the agency,” according to a CCRB spokesperson, but he will be testifying at a State Senate hearing on a bill that would repeal the law taking place in Manhattan on Thursday.
Amending the City Charter to allow the CCRB to go after officers under investigation who lie, he believes, will enhance the agency’s abilities to serve its mandate. “I think that it adds integrity to the process. It adds another level of accountability,” he said of what the commission has proposed.
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by Ethan Geringer-Sameth, reporter, Gotham Gazette
@GeringerSameth @GothamGazette
Speaker Johnson (photo: John McCarten/City Council)
New York City Council Speaker Corey Johnson is advancing his legislation to create a master plan for city streets, promising Thursday that the Council will vote on the bill this month.
Johnson, a Democrat from Manhattan, first proposed the idea of creating a five-year plan for the city’s streets, sidewalks, and pedestrian spaces in his State of the City speech in March, alongside a proposal for municipal control of the city’s subways and buses. The “master plan” would require the city’s Department of Transportation to implement a long-term strategy to improve surface transportation and street safety, which transit advocates say Mayor Bill de Blasio has not done sufficiently despite his administration’s Vision Zero program to eliminate traffic fatalities.
Speaking on Thursday at the Vision Zero Cities conference hosted by Transportation Alternatives, an advocacy group, Johnson said his plan was moving ahead and that the Council would vote on it during October. “I don’t expect all New Yorkers to give up their cars and swear to never drive again. That is not a solution,” he said. “But here is one. My master plan legislative package. This month, this month -- this month -- the City Council will vote on my bill.”
The bill would mandate the installation of 50 miles of protected bike lanes and 30 miles of bus lanes each year, add Transit Signal Priority for buses to move more quickly to 1,000 intersections annually, and expand the city’s plaza program, quadruple shared streets by 2025 and redesign intersections to make them accessible to people with disabilities by 2030. The city’s Department of Transportation would design the full details of the plan and implement it, and it would be updated every five years.
The issues the bill would address have taken on a particular urgency this year amid jumps in cyclist and pedestrian deaths from last year at this time, though overall traffic fatalities have dropped drastically since the mayor announced Vision Zero in 2014. While de Blasio has moved to increase bike and bus lanes and recently offered new plans to both protect bike-riders and speed the city’s buses, many advocates, Johnson, and others still say the mayor is not moving aggressively enough.
The full Council has two Stated Meetings, where legislation is passed, scheduled this month. It’s unlikely that a vote on Johnson’s bill will happen at the October 17 meeting, where the Council is expected to approve the borough-based jails plan to facilitate the closure of Rikers Island.
The streets master plan would likely be on the agenda for the October 30 meeting. It would first have to be approved by the Committee on Transportation, chaired by Council Member Ydanis Rodriguez.
“I am confident that Speaker Corey Johnson’s Master Plan bill will take to us a safer tomorrow, for all New Yorkers,” Rodriguez said in a statement, noting that the majority of the 24 cyclist deaths this year were in areas without a protected bike lane. “I thank all of the advocates for the work they are doing each and everyday to increase the awareness of these crashes across the 5 boroughs. I will continue working with the advocates, my colleagues and Speaker Corey Johnson to ensure we don’t see another life lost on the road.”
Johnson’s push for his master plan has been in contrast to de Blasio’s more measured attitude towards reducing private vehicle usage or promoting mass transit. Johnson has sought to break the city’s “car culture” with street redesigns, new traffic calming measures, reducing congestion, and improving access to mass transit. A likely 2021 mayoral candidate, Johnson has said he does not envision ending car usage in New York City, but that his master plan bill is part of a vision to prioritize mass transit users, bike-riders, and pedestrians over those in cars, while making other modes of transportation as attractive as possible to encourage less car traffic.
When Johnson’s bill was examined at a hearing of the Council’s transportation committee in June, DOT officials said it would require a massive infusion of funds and new personnel for the agency. But the administration has signalled that it shares Johnson’s goals.
“We are continuing to work with the Council on this legislation,” said Seth Stein, a spokesperson for the mayor, in a statement. “We agree with the values underpinning this bill, that we must continue to aggressively pursue street redesigns under Vision Zero to save lives across the city.”
A spokesperson for Speaker Johnson said there have been no changes to the master plan bill so far.
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by Samar Khurshid, senior reporter, Gotham Gazette
@samarkhurshid @GothamGazette
(photo: Michael Appleton/Mayoral Photography Office)
Major changes are coming to the way New Yorkers cast ballots as the New York City Board of Elections prepares to roll out early voting for the first time later this month. In a sort of test-run during a very quiet election year, the Board will be opening up the polls for nine days leading up to Election Day and is taking the opportunity to pilot new technology that can make voting easier and more accessible.
Throughout 2019 New York City elections administrators have had the immense task of expanding voting days from a single day to ten days -- in a city of over 5 million registered voters -- thanks to recent changes in state law. Early voting passed in January as part of a host of election reforms long sought by good government advocates, which finally gained legs when Democrats took control of both chambers of the State Legislature. It begins for the first time in just two weeks.
There will by 61 early voting poll sites across the five boroughs open for varying hours from October 26 through November 3, followed by Election Day, which this year falls on Tuesday, November 5 (there will be no voting on November 4).
What voters experience at the early voting sites will be markedly different from the traditional voting experience New Yorkers are used to, including changes from the more paper-based past. Given it is something of a pilot year, Election Day itself will be a hybrid of old and new.
“What we’d like to be able to do, if we can make this change,” BOE Executive Director Michael Ryan told Gotham Gazette in an interview this week, is give voters and poll workers a taste of the coming changes prior to the presidential election in 2020, “so that people will be a little more familiar with the process.”
There is little on the ballot this year, though there is a citywide special election for Public Advocate and charter revision proposals that could alter voting and governance in the city. There are also some local races, like the Queens District Attorney election and judicial contests. Turnout is expected to be very light this year, before a massive showing in 2020.
As part of this year’s reform package, state lawmakers not only created the early voting program, but authorized local elections boards to use electronic poll books for the first time, a move critical to implementing early voting but one that comes with its own logistical hurdles.
To help administrators meet the demands of the new voting process and comply with the state laws that created it, the BOE has created new positions to coordinate early voting operations in each of the five boroughs and has expanded and updated it’s poll-staff training. These preparations, among others, will soon be tested.
Many voters who take advantage of early voting will be casting their ballot at a poll site different from their assigned Election Day site. By replacing the limited and cumbersome paper poll books used to look up voter registration information, electronic poll books will allow poll sites to track whether a voter has already cast a ballot and enables early voting sites to serve a wider spread of election districts, each with its own unique ballot.
The shift to early voting requires a large amount of digital technology, in addition to e-poll books, all of which has to be backed up, secured, and operated by the Board’s temporary poll-site staff. During the early voting period, the New York City BOE will use the new e-poll books and a ballot-printing system known as “ballot-on-demand,” which syncs with the voter rolls to produce the correct ballot without each early voting site having to be stocked with what could otherwise be a prohibitively large range and number of pre-printed ones.
“Any Line, Any Time”
The ballot-on-demand and e-poll book systems together allow the BOE to pilot a concept Ryan is calling “any line, any time” in the early voting days.
Typically on Election Day, a voter has to check in to a specific table assigned based on Assembly and/or election district where they are given the proper ballot from a pre-printed pack stored in shrinkwrap.
According to Ryan, starting this year when a voter enters an early voting site they will be checked in by a poll worker at one of usually ten e-poll books at each location and will be given a ballot by another poll worker stationed near a ballot-on-demand printer. The system is supposed to create more simplicity for voters and efficiency for poll workers, and is one the BOE believes it can reproduce at Election Day sites in the future.
The new procedure means staff at early voting sites require a different type of training from Election Day poll-site staff.
“That is a difference in the way we currently run elections and our hope is that that will work well, we’ll get rid of those A to L, M to Z lines,” said Ryan, referring to the assigned tables. “Here, for early voting, if there’s a line at one you’ll go to the next one and so on down the line. You’ll basically be able to go to the shortest line, or the empty slot.”
“We’re very encouraged based on our preliminary assessments that this will be something that can be replicated for all of our Election Day sites,” he added.
But execution by the BOE remains to be seen, and there are limitations. The way the system is set up this year, voters may only cast ballots at their assigned early voting site (as opposed to any early voting site in their borough or across the city), which may not be the same as their Election Day poll site and could be further from their home. The differences may cause confusion and the limitations in convenience undermine the intended purpose of the new voting system.
Jarret Berg, an election lawyer and founder of advocacy and watchdog group Vote Early NY, told Gotham Gazette the BOE decided to invoke an exception in the law that allows the city to assign voters to specific early voting sites. “This is one of my top grievances with the program they have. Frankly, it is my top grievance,” he said, indicating his preference that the city allow voters to cast a ballot at any early voting site in their county (also known as borough) or even citywide.
Spoon Feeding on Election Day
Election Day will look differently in the first year of early voting.
Rather than the 61 locations open during the early voting period, a New Yorker who chooses to cast their ballot on Election Day -- November 5 -- will arrive at their local poll site, one of over a thousand operating citywide. The greater number of poll sites means each is serving a smaller number of election districts and has to furnish fewer pre-printed ballot variations.
On Election Day, e-poll books will be used to check in voters, which involves matching a signature with the one on their voter registration, but they will not be connected to ballot-on-demand printers. Instead ballots will be supplied the old-fashioned way from the packs.
Part of the concern with undertaking the “any line, any time” approach on Election Day was the sheer newness of it, Ryan said.
“The fear was, we’re doing it for the first time. So we didn’t want to introduce too much to our poll workers and have too much change but we also have to recognize that we didn’t want to impose too much change on the voters either, because they have to get used to the new system,” said Ryan.
“So we figure we’ll spoon feed it a little bit,” he added. “The voters that vote early will get used to the new way of doing it. The voters that go to vote on Election Day will get used to a new piece -- that being the e-poll pad.”
Kate Doran is a member of the city’s League of Women Voters who has been attending commissioners’ meetings to monitor the BOE’s progress on implementing early voting. “I think they’ve been cautious. I think that they are trying not to make mistakes,” she told Gotham Gazette.
Preparing for the Big Day(s)
In order to get to where the board feels it needs to be by the start of early voting this year, Ryan and his staff have to ensure that each piece of technology will be able to carry out its function or be easily replaced at a polling location, and that the locations themselves could accommodate the technology.
Locations
The most essential task was finding early voting locations -- often school buildings, churches, or community centers -- that had the necessary space and power capacity to run machines, and that could be open for an extended period of time.
“It is an imposition on the regular operations of these facilities. That was, first and foremost, the biggest concern -- finding suitable sites,” said Ryan.
Some of the sites are feeling that imposition. Gothamist reported this week that some principals have been caught off-guard by their schools being used as early voting sites over two weeks this fall. In some cases, the Department of Education didn’t inform principals until weeks before the early voting period is set to start, in the middle of the first months of the school year.
The boroughs with the fewest early voting sites will be Manhattan and Staten Island, which will each open nine this year. Brooklyn will have the most with 18.
Good government groups have sought internal BOE documents under the Freedom of Information Law to determine how the city came up with the poll sites it chose. The groups also want to know why voters will only be permitted to vote at one early voting site, “when the law's default position is that each voter should be permitted to vote at any site in their county of residence,” according to Perry Grossman, a voting rights attorney at the New York Civil Liberties Union (NYCLU) and a signatory on the information request.
Technology
Ryan says the BOE purchased 10,000 e-poll books in order to have sufficient numbers for each early voting and Election Day site, plus extras for training purposes and back-up. According to BOE meeting minutes, the e-poll books are part of a four-year, $19.1 million contract that also includes software, maintenance, and training.
Each early voting poll site will have roughly 10 books -- some will have eight, some may have 11 -- that will each connect to its own ballot-on-demand printer. The e-poll book vendor, the St. Louis-based company KNOWiNK, was chosen because it had integrated ballot-on-demand and e-poll book devices and tested them for compatibility.
Ryan says in the BOE’s testing so far that has proven to be true, but the Board is still in the process of testing to make sure the printers will be able to produce every ballot style (including the 7.5 point font for the ballot referenda questions). While the board has set out a one-to-one ratio of e-poll books to printers, the machines are capable of operating at a ratio of up to four-to-one, which will allow poll sites to continue running even if some printers break down.
The city of Philadelphia was recently in the process of contracting with KNOWiNK to supply e-poll books for elections this year, but the plug was pulled when compatibility issues were discovered with another company’s voting system, ES&S’s ExpressVote XL. Ryan claims he has been assured by both KNOWiNK and Philadelphia elections administrators that the problem would not impact New York City because the BOE is not using Express Vote or even a similar piece of technology. (In March, according to a BOE letter obtained by NY1, Ryan urged the State Board of Elections to use the ExpressVote XL before it could be fully tested and certified, but was denied the request and the devices were ultimately not cleared by the State Board for New York City. Last year, NY1 reported that Ryan had been a member of a secret advisory board at ES&S since 2014 and had received trips, hotels, and dinners on the company’s dime. Ryan resigned from the ES&S advisory board after the story broke.)
Connectivity and Election Security
One of the main functions of e-poll books is to prevent double-voting at early voting sites or on Election Day. The devices communicate with one another to note when a voter has checked in and received a ballot. They are connected both internally with the other machines at the poll site, and externally to machines at other poll sites through wireless signal provided by contracts with Verizon and AT&T.
“Under the old way, there was no way to check this. If you were a rogue and went from location to location and attempted to vote, there would be no way for the system to know because your name would be signed in a book at some other location and you couldn’t share it,” Ryan said.
To ensure that the e-poll books work as intended, the BOE has purchased wireless routers called Cradlepoints to boost signal at poll sites. The devices are each customized with SIM cards from Verizon and AT&T, which they can toggle between depending on signal strength to ensure connectivity.
For security purposes, the Cradlepoints will arrive at poll sites in a military grade case with a padlock and a tamper-proof seal.
“A missing red seal would be a red flag, literally and figuratively, to a poll worker that something was done with that,” said Ryan. The devices’ hardware is complicated and the human error of temporarily hired poll workers can lead to mishaps, so the city will be using machines designed to function as long as they are plugged in, with no additional set-up.
The security of the e-poll books themselves have been kept under wraps. Ryan says the books have been programmed with internal security measures, which he cannot discuss publicly. According to Ryan, the books as compared to a traditional tablet have “significantly more robust cybersecurity and encryption, et cetera, to make sure the information can’t be tampered with.”
The BOE was required by law to submit within 60 days of early voting a security plan to the State Board of Elections if it planned to store any voting material remotely during the early voting period. The City recently reported that as of the last week of September, no plan had been submitted. The State Division of Homeland Security and Emergency Services tested the cybersecurity of e-poll books earlier this year, but a representative told Gotham Gazette the agency could not discuss any of its findings.
The BOE is still in the process of testing the Cradlepoints at each site, which Ryan says simply requires turning it on and seeing if it connects to the e-poll books. The e-poll books themselves are essentially tablets that connect to a wireless signal the same way a mobile device would. Should a Cradlepoint go down, the board will have backups in zones throughout the five boroughs, to be delivered to the poll site, rather than having it be serviced by a limited number of technicians (a similar method of using technicians to repair broken ballot scanners last November led to chaos at the polls).
Staff
To manage the overhaul of voting days, sites, and technology, the BOE has created dedicated positions to assist in the implementation of early voting. There are two early voting clerks in each borough -- one Republican and one Democrat, mirroring the board’s bipartisan structure -- to serve as point people in the rollout of early voting.
While Ryan says the clerks have been hired to assist borough chiefs and deputies he also says their roles haven’t been fully determined and will likely vary from borough to borough.
“We’d certainly like to segregate early voting to the extent that we can,” he told Gotham Gazette, referring to differentiating those operations from Election Day operations.
By the same logic, the BOE has divided its poll-site staff into Election Day workers, who will need to be trained on using e-poll books and setting up the poll sites differently, and early voting workers who also need to be brought up to speed on the ballot-on-demand printers.
“The training has been rather robust,” said Bill Meehan, who has been a poll-site worker in Jackson Heights for roughly a decade and poll-site coordinator for half of that time. The five-hour training he attended in late September was more hands-on than ones he’d been to in the past, he said.
“The mechanics of [the e-poll books] worked really well,” he said. At a poll site, voters will simply be asked to give their names and poll-site staff will enter the first couple of letters of the first and last names into the devices. “It pulls everything up. And if it doesn’t, then you go with the date of birth. And then it pulls it up. But it gives you everything you need. It’s right in front of you.”
Ryan is hoping to expand the early voting system to Election Day sites in the future and is treating the 2019 election as a test run. This year happens to be the one in every four-year cycle where there is little on the ballot in New York. With fewer, low-profile races (namely, the Public Advocate race, some judicial positions, Queens District Attorney, and five ballot referenda on changes to the city charter), turnout is expected to be lower than midterm, presidential, or mayoral election years, giving administrators a chance to introduce the new methods to the public.
But the BOE is also now grappling with the task of rolling out so many new components in the truncated period between when early voting was passed in Albany and takes place in New York City.
The preparation “wasn’t without concern and it wasn’t, certainly, without work,” Ryan told Gotham Gazette.
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by Ethan Geringer-Sameth, reporter, Gotham Gazette
@GeringerSameth @GothamGazette