Gotham Gazette

The Place for New York Policy and politics

CITY

City

Under New Body Camera Policy, NYPD Still Controls the Video and the Narrative


mayor streetjoint bula

Mayor de Blasio reviews NYPD video (photo: Michael Appleton/Mayor's Office)


In June, Mayor Bill de Blasio announced a new policy for automatically publishing body camera footage within 30 days when police officers kill or seriously injure someone. The step, he said, would give the public more assurances that they would actually see video captured in serious cases of police force, an implicit but often unrealized aim of the transparency program. But more than two months since the policy was implemented, old questions remain about who controls what footage is released, how it is edited and, ultimately, the narrative it creates.

De Blasio said the police department would start to publish "all video and audio footage" when officers fire their guns, or when they inflict serious or deadly injury with a taser or other force. Civilians involved and their family members would have an opportunity to view the video before release, according to the mayor. Since the announcement, 11 videos have been published to the NYPD’s YouTube account, including at least three fatal events, each one edited and narrated by a department spokesperson with on-screen prompts.

"We recognize the power of body-worn cameras, but body-worn cameras are only as powerful as the transparency that comes with them," de Blasio said at a June 16 press briefing amid weeks of protest against police brutality and a series of police reform announcements. "It only works if people see accountability, see results from the presence of those cameras."

The announcement was a far cry from the unilateral discretion the police commissioner had held in the initial policy, which was only adopted this past November, five years after the department first began using body cameras, and which gave the commissioner 30 days to decide whether or not to release the footage. But police reformers say the new policy contains too much of the old: they want the footage to come out in complete, unredacted form and for the release to be controlled by an independent body. Though some family members of people killed by NYPD officers are still seeking body-camera footage from months or years ago, well before the policy was amended, de Blasio said it will not apply retroactively.

They are concerned that a tool intended to give the public an eye-witness perspective into police-civilian confrontations still leaves the NYPD with all the power.

"We need to ask to what extent does the NYPD need to edit the videos, what they are editing for -- and the way they are narrating it, whether or not it is a true and accurate representation of the events that happened," said Jennvine Wong, a public defender with Legal Aid Society and coordinator of its Cop Accountability Project, by phone.

The police department has long maintained that state and federal privacy laws require it to edit footage, even when sharing it with other government agencies. The NYPD has cited requirements to redact depictions of minors, victims of sex crimes, people with sealed arrests, and medical scenes as a reason for limiting what body camera footage is released. Editing for privacy takes time, according to NYPD spokespeople who say it is also the primary contributor to a backlog of video requests from the Civilian Complaint Review Board (CCRB), a watchdog agency with jurisdiction over certain types of police misconduct.

According to an NYPD spokesperson, no privacy statutes have changed so the department is still editing footage for privacy purposes. In some videos, the faces of bystanders or license plates are blurred out.

Ethan Teicher, a spokesperson for the Civilian Complaint Review Board, said the new policy has no bearing on footage sharing between the NYPD and CCRB, which are still operating under a separate agreement from December promising to provide more direct access to the oversight agency. The backlog of requested body camera videos has fallen drastically since June -- from over 1,000 to under 300 by August 28.

Advocates are concerned that there is a lack of objectivity in the stories crafted in body camera videos published by the NYPD. Without changing the editing procedures and the publisher, they say the policy creates only limited accountability.

“While on paper, the revised NYPD policy is an improvement, the NYPD's overall approach to its body camera program remains at odds with the stated purpose of these cameras as tools for police transparency and accountability," wrote Michael Sisitzky, a policing expert at New York Civil Liberties Union (NYCLU). "The more control the NYPD exercises over the cameras and their footage and the more the NYPD continues to punt on accountability for officers who break the rules, the less the body camera program serves that purpose.”

"Of course they are going to seek to escape liability as much as they can," Wong said.

Reformers like Wong and Sisitzky believe an agency with independence from the police department should be in charge of releasing footage of police using critical force. Otherwise, the risk remains that some footage may be withheld from the public, delayed, or spun to support the NYPD's narrative of events.

"In the few [videos] we've seen, they're not releasing unedited and undoctored or uncut footage, they're releasing cuts of footage that they narrate," said Joo-Hyun Kang, executive director of the coalition known as Communities United for Police Reform.

"I think we can all view an event and understand what we are seeing for ourselves and analyze it for ourselves," Wong said.

On June 2, Tyquan Graves, a Black man suspected of a shooting, was killed by police in Weeksville, Brooklyn, allegedly holding an unloaded pistol. Ten officers fired a total of 62 rounds at Graves, according to Sgt. Carlos Nieves, an NYPD spokesperson who appears at the beginning of all recently released videos and provides frequent narration. In the 30-minute video posted to YouTube nearly two months after the incident, on July 31, footage from nine officers' body cameras is presented back to back, with each video cutting off almost immediately after the last shot is heard. No video shows Graves holding a gun, nor his body after the barrage of bullets, but Nieves tells the viewer, "he began to raise the firearm, at which point 10 officers fired 62 shots at the subject."

The video includes an evidence photograph of Graves' alleged weapon and a still photo of his dead body holding a gun, his face digitally blurred and the visible boots of an officer standing over him. A caption on the photo says it was taken from "Officer Melendez's BWC" but footage from Melendez's camera is not among the nine published clips.

Unlike the videos published to its YouTube page for general public viewing, the NYPD routinely shares complete and largely unedited footage to prosecutors and defense attorneys. As Gotham Gazette has previously reported, prosecutors received body camera evidence within a matter of hours and, according to Wong, defenders typically receive it in a matter of days to a couple of weeks.

Of the 11 videos released since the June 16 policy amendment, only three were released within 30 days. The median release time for all 11 was 55 days.

"Additional videos will be released in the coming days and weeks," wrote an unidentified NYPD spokesperson through the department's public information email account.

The families of people killed by police have traditionally struggled to get access to see complete body camera video of the incident, if footage was released at all. The new policy requires the NYPD to give family members, as well as civilians involved in the relevant event, an opportunity to see the footage before it is released.

The NYPD spokesperson said family members of people killed by police in three of the 11 recently released videos had been given the opportunity to view footage, but didn't say whether that footage was edited. The department did not say whether other civilians captured on video were contacted or shown footage before it was posted.

In some cases, there are very specific questions police reformers and the families of victims of police violence believe can be answered by body camera footage. In the case of Antonio Williams, a Black man who was killed by police gunfire that also killed a police officer, Brian Mulkeen, in September 2019, his family says they are still seeking complete body camera footage, including of the aftermath of his shooting, to find out if appropriate steps were made to save his life and how long officers waited to call an ambulance. Like other recently-released videos, the footage of Williams' death -- released December 2019 -- is cut immediately after shots are fired and audio is unavailable leading up to the start of the encounter (attributed to a buffer time when activating the cameras).

“It's been almost a year since our son Antonio was gunned down in a hail of 15 bullets while he was waiting for a cab, and we still haven't been allowed to see the full footage," wrote Shawn and Gladys Williams, Antonio's parents, in an email to Gotham Gazette.

"Mayor de Blasio's pronouncements mean nothing while the officers who murdered our son are still being paid as NYPD and the NYPD has the power to cut and edit footage before public release," they wrote.

"What they released [in Antonio Williams' case] was just partial footage, and that is part of the overall danger about the NYPD controlling all body-worn camera footage anyway," Kang said. "They can not only edit, but even if they don't edit if they don't show full footage that's an editorial decision."

***
by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

Read more by this writer.

Five-Candidate Field Emerges for Expected Bronx Special Election to Replace Council Member Cohen


eebit3fuyaistaj

Council Member Cohen (left) passing out masks in his Bronx district (photo: @AndrewCohenNYC)


Bronx City Council Member Andrew Cohen’s recent nomination for a Supreme Court judgeship at the Bronx Democratic Party’s judicial convention in August means that the already-underway contest to replace him in the Council will likely move up from a June 2021 primary to a February or March 2021 special election, assuming Cohen assumes his judgeship in January. The special election in Council District 11, along with contests for soon-to-be-vacant seats in Council Districts 15 (Ritchie Torres) and 31 (Donovan Richards), appear likely to be crowded, competitive affairs and are likely to be the first uses of ranked-choice voting in New York City.

City Council District 11, which Cohen has represented since 2014, covers the northwest corner of the Bronx, including the neighborhoods of Bedford Park, Kingsbridge, Riverdale, Norwood, Van Cortlandt Village, Wakefield, and Woodlawn. Riverdale, the traditional political power center of the district, is largely white while the neighborhoods of Kingsbridge and Woodlawn, are home to a majority of people of color.

According to NYU’s Furman Center, in Community Board 8, which overlaps with much of the district, about half of the population is Hispanic, while 29% is white and 15% are black. The poverty rate in the area covered by the Community Board was 18.8% in 2018, slightly higher than the citywide rate of 17.3% but significantly lower than the borough’s poverty rate of 27.4%. Average rents in Riverdale are about $1,410, while the average rent in the Bronx is $1,210.

Even before Council Member Cohen received his judicial nomination, candidates were already lining up to replace him given term limits, including district leader and teacher Eric Dinowitz (whose father is State Assembly Member Jeffrey Dinowitz), tech entrepreneur Jessica Haller, former Community Board 8 chair Daniel Padernacht, social worker Abigail Martin, and Marcos Sierra, a district leader and former community board member. The recent nomination kicked the budding race into a new gear, likely shortening the timeline, and Gotham Gazette spoke with the five candidates, all Democrats like Cohen, about their campaigns and the top issues in the race including housing, public safety, education, transportation, and more.

“This is a very interesting race during a very interesting time politically in the Bronx,” said Gary Axelbank, host of Bronx Buzz on BronxNet TV. “There’s no question there’s an upheaval in Bronx politics, but there’s a real opportunity for the Bronx to remake itself.”

Eric Dinowitz appears to hold an advantage in name recognition given his father is a Bronx county stalwart who has held his Assembly seat for over two decades. Assemblymember Jeffrey Dinowitz’s 81st District is almost coterminous with the 11th Council District, with the latter extending more into Norwood than the former.

The younger Dinowitz had raised $73,550 for the race, as of a July 11 campaign finance disclosure that covered the previous six months, and had $53,966 in cash-on-hand. Haller came in second in the cash race having raised $55,827, and with a balance of $38,371 in her account. Padernacht has raised $30,961, but has only $3,099 in his account as of July. Martin has not yet filed any financial disclosures.

Eric Dinowitz had 311 individual donors to Haller’s 386 and Padernacht’s 246. Their average donations were $236, $145, and $126, respectively.

“I have hundreds and hundreds of individual donations. The vast majority of those are from the Bronx and small-dollar donations,” Dinowitz said of his fundraising lead. “What that tells me is that I’ve built a broad, deep coalition of support throughout the district.”

The other candidates have criticized the timing of Cohen’s elevation to a judgeship, which they say gives an advantage to Dinowitz since a special election will likely have lower turnout than the June primary and give the candidates less time to establish their campaigns. Eric Dinowitz has pushed back against that critique. “I am a public school teacher and have been a community activist for years,” he said, when asked about the questions surrounding the influence of his father in the race. “The voters are smart. They’re going to make a choice. It’s up to me to tell my story and share my vision of what we need to recover from this crisis and revitalize this community and this city.”

Haller, however, was critical of how the Democratic county party handled the process. “Not only is it a backroom deal where papa gets to anoint his son,” she said. “We’re going to trigger a special election that’s going to cost millions, we’re not going to get full turnout, and the community is going to be unrepresented for months.” The cost of the special election was a particular sticking point for Haller, who noted, “We have budget cuts everywhere.”

Martin echoed Haller. “This is an example of machine politics at play and Jeffrey Dinowitz has orchestrated it. It’s evidence that he doesn’t want the constituents of this district to hear from all the candidates,” she said, citing the difficulties of running as a first-time candidate, particularly during the pandemic. “Special elections are expensive and we should be using that money to keep roofs over heads and food on tables.”

Special elections in New York City are also non-partisan, meaning candidates run on ballot lines they create, and can’t be nominated by the traditional parties. Therefore, none of the candidates will appear on the Democratic Party ballot line. Assuming all goes accordingly for Cohen, the election will take place (using the ranked-choice voting system) and the winner will win the seat outright, and be sworn in soon after to serve the final months of Cohen’s second term. Like with all 51 City Council seats and many other city government positions, there will still be an election for the seat next year via the June primaries and fall general election, to see who holds the position for 2022 and 2023, but the special election will mean there’s an incumbent in that second 2021 race.

Why They’re Running
“Every single day, I see deep inequities in my classroom,” said Eric Dinowitz, who teaches at the Walton Campus, a public school in the Jerome Park neighborhood, “and there’s only so much I can do as a teacher to solve this problem. As a Council Member, I’m going to fight for the structural changes needed for all students, for working families, and for seniors.” Dinowitz, a member of the United Federation of Teachers (UFT), has been endorsed by his union. He did not specify what he meant by “structural changes.”

Haller touts the environment as her signature issue and believes that the Bronx has suffered from harmful policies that can be fixed at the local level. “The Earth is on fire quite simply and we feel it quite acutely in the Bronx...We see it in lack of opportunity for kids and we see it disproportionately in all sorts of terrible things from covid to heat. So much of it is completely preventable if you think about the world and the city in a systemic way,” she said, referring specifically to asthma-related and heat deaths caused by pollution.

She describes herself as “a mom and a climate activist and I’ve been an entrepreneur for many years,” pointing to her work on the $3 billion Willets Point development, helping to make the project environmentally sustainable, through her startup at the time. “For me, the next frontier of addressing the most global issues at the most local level is moving into City Council, where I think I can pick up the reins of the really great work that has been started by the Council,” she said.

“I love government service and I think being a City Council Member would allow me to expand the amount of work I do in the community,” said Padernacht, citing his “experience, knowledge, commitment, determination, and willingness to work with everyone.”

Padernacht pointed to his twelve-year Community Board experience, which he believes gives him a “grasp on community efforts” and “really good experience working with the community in the framework of advocating for the community,” as well as a background on the issues that matter most and an understanding of city agencies. In addition to working as chair, Padernacht has served as charity of the board’s transportation committee and vice-chair of its land use committee. He says Community Board members turned Council Members “hit the ground running” because of that “wealth of knowledge.”

“We need a strong economic framework in the city of New York and in order to do that we need to create opportunity for business, support for business, and make sound financial decisions,” said Padernacht, who opposes any city tax increases and supports eliminating waste in city agencies to close the budget gap. “We need that to be able to support our most vulnerable populations.”

Martin was spurred into the race by witnessing the city’s worsening affordability crisis. “After watching families get squeezed out of this city year after year, I’ve grown increasingly concerned that New York is becoming more and more expensive, and then covid hit, leaving us in an enormous fiscal crisis,” she said. “I saw services being cut for those who need it most all while politicians are refusing to ask those who can to help out.”

“We have to do better to save this city and the Bronx from complete collapse,” she added, pointing to affordable housing and childcare as top concerns. She opposes any increases to MTA fares, if possible.

“I’m running because I want to have equitable representation,” said Sierra, a Norwood resident, “that leads to an inequitable distribution of resources. The 11th Councilmanic District is larger than Riverdale.” Sierra serves as a district leader in the 80th Assembly District, only about a fifth of which overlaps with Council District 11.

Sierra continued, “In the uncertain and turbulent times ahead, the people of the 11th CD deserve a representative with real life qualifications. Someone who has lived their struggle, experienced their grief, and can relate to walking in their footsteps.”

Housing & Land Use
Affordable housing is a preeminent issue for voters in the district, as it is across the city. Council Members play a prominent role in the city’s Uniform Land Use Review Procedure (ULURP) and the entire Council traditionally defers to the judgement of the local member when choosing to approve or reject a particular land use application, which at times become controversial when large projects or increased density are involved. The area is home to few public housing units: in Community Board 8, only 3.4% of rental units are NYCHA housing, compared to a borough-wide average of 9.7%, according to the Furman Center.

“It’s vital that we keep people in their homes, especially our seniors,” Eric Dinowitz said, stressing the importance of ensuring access to the city’s Senior Citizen Rent Increase Exemption (SCRIE) Program and the Disability Rent Increase Exemption (DRIE) programs. He wants to expand the city’s affordable housing supply, “so people can afford to live in their own city,” but did not specify how the housing supply should be grown.

“The lens that I am viewing my vision of the city is equity, resilience, and sustainability,” Haller said, clarifying that “sustainable also means financially sustainable.” “Affordable housing has to be built well and built safely,” she said. “Everything that we build in this city needs to be able to withstand what’s coming and to be operating into the future.”

“We need to focus on affordable housing, but the business model needs to work so developers come and do it,” Haller stated, decrying some “false business models” that use too-high Area Median Income (AMI) numbers, often set by city and federal formulas, that make included affordable housing unaffordable to local residents.

“One of the biggest things we can do to create stable housing is affordable housing through homeownership,” Padernact told Gotham Gazette. He praised the state’s Mitchell-Lama program, which provides rental and cooperative housing to moderate- and middle-income families through private development, and said that the opportunity exists for the city to establish similar programs.

On land use, Padernact said he would take a “holistic view” and “look at the benefit to the community of any potential new development. I’m going to look to see how that development fits within the immediate community. I’m certainly going to seek feedback from neighbors and stakeholders. And, I’m going to look at its impact on the district’s infrastructure,” specifically its effect on public transit, schools, and emergency services.

“I would suggest a more aggressive approach,” Martin said, on affordable housing, saying there was “room for improvement” with Mayor de Blasio’s housing strategy, which relies on subsidizing the development of rent-restricted housing and rezoning large swathes of neighborhoods to create more density. “We need to talk about [land use]. We have areas that don’t have the infrastructure to handle more people and we have areas that can,” she said, emphasizing the importance of impact studies that can gauge the long-term effects a rezoning would have.

Sierra said his top priority is “real affordable housing, not that band-aid stuff,” specifically referring to Area Median Income determinations. “The AMI for the City of New York is artificially inflated because it includes affluent suburbs,” he said, and pointing out that the AMI assesses the median income for a family of four at around $113,700, when the Bronx’s median income is closer to $36,530. “Because of this AMI, people in the Bronx pay 50% of our income to rent, when the national average is 30%. It blows my mind that the borough that has the lowest pay per capita in the country pays the most rent in the entire nation.”

Sierra suggested that the City Council create an AMI specifically for the Bronx, so that affordable housing guidelines reflect the actual incomes of the residents of the borough, though it is not clear if that is something the Council can do and have the city still be eligible for federal housing funds.

Police Accountability & Public Safety
Amid recent Black Lives Matter protests and the “Defund the NYPD” movement, police accountability and reform are once again major issues in city elections. The candidates in the District 11 race all voiced support for the movement for greater police accountability, but some stopped short of advocating for significantly shifting funds from the police department to social services.

“We obviously have deep problems with policing in New York City,” said Eric Dinowitz, who supported recently enacted reforms such as the repeal of Section 50-A of the state civil rights law, which shielded police officers’ disciplinary records from public view, and a state law criminalizing the use of chokeholds by officers during arrests. “Maybe we don’t need to criminalize certain behaviors,” he added, particularly in reference to people experiencing homelessness. “Something I’ve been advocating for years has been more social and emotional health training.”

“I struggle to see what a simple statement like getting rid of a billion dollars does,” Dinowitz said, when asked about the ‘defund the NYPD’ movement, which had called for cutting $1 billion from the police department’s roughly $6 billion annual operating budget. “Cutting the budget in and of itself does nothing to change the culture or legislation of what police do.”

Haller initially supported defunding the police budget by $1 billion over four years in the immediate aftermath of George Floyd’s killing, and now supports calls for a $1 billion reduction in the police budget. However, she said, “I will not legislate by hashtag. You can’t take an organization and say ‘I’m going to give you less money and fewer resources and you have to do better.’”

“The slogan ‘defund the police’ is a bad slogan,” Padernacht said. “I would be supportive of diverting money to other services that add to the public safety of the city.” Citing recent cash bail reforms and a purported NYPD work slowdown, he said, “I think the increase in crime is due to a perception that there aren’t many consequences for those committing the crimes in New York at this moment and I think perception is the key word there.” Notably, while overall the major index felony crimes are slightly lower than last year, murders and gun violence have increased significantly.

Martin said she’s still “in the fact-finding phase,” but added, “In general, we are watching crime go up and I think that that is becoming a big concern for people. When you talk about tightening the budget, every single city agency has to do their fair share to get us through this crisis.”

Similar to other candidates, Sierra expressed skepticism over “Defund the NYPD” as a slogan, saying, “I believe that you can support the police and still be against police brutality. We need law enforcement in our neighborhoods. Anyone who says otherwise is not paying attention, for practical safety purposes.”

“I agree with the reallocation,” Sierra said, referring to recent budge shifts by the City Council and mayor, adding, “I feel that we should not have police officers in school.”

Education
The reopening of city schools is an issue raised by many of the candidates, who almost uniformly expressed skepticism about the city’s plan, which involves partial in-person instruction mixed with virtual learning. New York City is currently the only major school system in the country with plans for in-person learning to begin when the school year starts (for New York City students on September 10).

“I’m a parent myself. I think all of us want our children back in the classroom, but I think we all want our children to be safe,” Eric Dinowitz said.

Haller, a mother of four school-aged children, said, “There’s an absolute lack of common sense and common goals, so that the teachers don’t trust that they’re going to be safe and the parents don’t trust that their kids are going to be taken care of.”

“I believe that housing, education, and public safety are inextricably combined with one another and when it comes to education we need to move to skills-based education and away from teaching to a test,” Padernacht said. On the school reopening plan, he said “We’re not prepared for blended learning” and “we should target in-person teaching to the students who need it most.”

Martin, who has children in public school, has decided to keep her young children in remote learning this year. She explained, “Parents who are able to make that choice should make that choice so that parents who are unable to, who have to go to work, can. I’m very concerned with how things are going to go. I’m going to be watching it very closely and we’ll see what happens. I wish the Department of Education had been able to get more creative, but here we are.”

On the city's school reopening plans, Sierra said, “It could be better.” He specifically cited air filtration systems in school facilities as a major concern. “If there is no comprehensive testing done on the ventilation systems in every school, we are potentially putting children and faculty in extreme danger for exposure to covid and that’s not acceptable.”

Transportation
Communities like in Council District 11, at the very edges of the city proper, are in constant need of mass transit access and reliability.

Eric Dinowitz pointed to his activism on transit, campaigning for accessibility at an MTA station in the district, which was ultimately successful. He tied the city’s recovery efforts inextricably to this issue. “As we’re looking to revitalize this city, especially our businesses, we have to ensure that our transit system works and that it works for everybody,” he said. Dinowitz points to his advocacy against the MTA’s plans during the Bronx bus route redesign to cut express bus service in the district, which ultimately did not happen.

“Covid really makes this very hard,” Haller noted, citing the fall-off in the MTA’s revenue. “We need to make public transportation such that people find it convenient enough not to need a car.” She proposes installing CitiBikes in the northern Bronx, which currently does not have any, and focus on other “micro-transit” solutions to make public transportation more accessible. Despite the recent redesign of bus routes in the Bronx, which Haller called “a great attempt,” she said that “it’s going to be really hard to satisfy everyone.”

Sierra opposed the recent Bronx bus redesign, saying, “I thought it was a bad idea from the beginning” and decrying what he called a lack of community engagement. ADA compliance is also a top concern when it comes to transportation for Sierra. “If we’re going to have a conservation about improving transportation, that should be number one if not number two on the list," he said.

“There are still a lot of residents [of the district] who rely on cars,” Padernacht said. He supports the expansion of bike routes in the district, saying “it’s a safety issue for pedestrians, bikers, and drivers.”

Additionally Haller discussed at length her signature issue of the environment, noting that heat deaths and childhood asthma hospitalization rates are on the rise in the city, and saying “The heat island that is the Bronx and all of New York City is even hotter” than the world as a whole. She wants to see congestion pricing, low-emission zones, and other policies that would reduce the cars on the city’s roads.

“We’re terrible,” Haller said of the city’s resiliency efforts. She opposes a massive proposed sea wall and instead believes the city should be pursuing “living shorelines” and “other small, diverse” resiliency projects. “We have to learn to live with the water,” she said. “We’re not going to hold it back.”

***
by Andrew Millman, Gotham Gazette
   

Read more by this writer.

Note: this article has been updated to remove Dionel Then, who dropped from the race just as this story went to publication. It has also been corrected to remove mention of Martin's fundraising numbers, she has not yet filed any and updated to add that Marcos Sierra is running and comments from an interview with him.

New Machines May Help With Early Voting But Advocates Say They Could Undermine Ranked-Choice Voting


30787897328 6a3c4da1ba c

Ranked-choice voting will be implemented for the first time next year (Michael Appleton/Mayor's office)


The New York State Board of Elections is continuing the process of certifying new voting machines sought by New York City elections administrators to improve the city's early voting system. But, while those machines could help the city take a step toward county-wide early voting centers – which many early voting supporters are pushing for – voting reform advocates say they may not be viable for ranked-choice voting, which will be implemented for the first time in the city next year. 

Ranked-choice voting, also known as instant-runoff voting, lets a voter rank up to five candidates by preference, so that if no candidate wins a majority of votes, the last-place candidate's ballots are redistributed based on their voters' second choices, a process repeated until a winner emerges with 50% of the vote. RCV, which will only be in effect for special elections and party primary elections (not general elections) for New York City government positions, helps avoid costly and labor-intensive runoffs, which often see exceedinly low voter turnout. New Yorkers approved the change by ballot referendum last year to go into effect in 2021, when several City Council special elections as early as February could be the first RCV contests.

A document obtained by Gotham Gazette indicates the New York City Board of Elections believes its current voting machines will work for RCV in 2021, and is taking the necessary steps to upgrade their software. However, one leader of the State Board of Elections, which has to approve technology used by local boards, says no attempt to certify new software has been made.

In a report sent to Mayor Bill de Blasio and City Council on July 1, the BOE said that as early as June 2019, the board's voting machine vendor, Election Systems & Software, confirmed that "the current hardware and firmware utilized to conduct elections in the City of New York and as certified by the New York State Board of Elections 'has the ability to layout a ballot that will accommodate RCV.'" New York City's current machines, the DS200 optical scanners, are designed to receive a handmarked paper ballot, while the new machines, Express Vote XL, are combined voting-and-tabulation machines that use a touch screen and have greater memory to store multiple ballot designs.

The BOE's executive director, Michael Ryan, came under criticism in 2018 for his affiliation with ES&S, particularly his undisclosed participation in an advisory board of the company, which paid for Ryan to take trips to conferences around the United States. Ryan has denied any conflicts of interest with ES&S and stepped down from the advisory board after it was first reported by NY1.

In March 2019, in a letter to the State BOE, reported again by NY1, Ryan asked to be able to use the new Express Vote XL machine from ES&S before it had been certified for use, but the request was denied. Ryan said the new machine, with its great memory capacity, could store more ballot styles and thus accommodate voters from a wider swath of election districts – a necessary hurdle to overcome if the city is going to set up county-wide early voting centers sought by advocates.

When it looked like the Express Vote XL was nearing certification by the State Board in January, good government groups and elected officials raised alarms about its history of inaccuracy, including an election in Pennsylvania where the machines failed to count 26,000 votes. Critics said the machines would also be costly and could damage confidence in the new RCV system during its first year if they failed.

"The ExpressVote XL has never been used in a Ranked Choice Voting election," read a January letter from good government group Common Cause NY and current and former public officials, including Public Advocate Jumaane Williams and former CCRB Chair and Counsel to Mayor de Blasio, Maya Wiley, who is exploring a run for mayor in 2021. "The largest New York City election cycle in recent history, with wide open races for Mayor, Comptroller, four Borough Presidents, and 35 City Council seats, is no place for a trial run with a machine that has failed in other jurisdictions."

A spokesperson for ES&S said the Express Vote XL is compatible with RCV without a software upgrade and has a good track record.

With the latest confirmation that the current machines can work with a software update, advocates are enjoying a moment of relief. "This is what we have said all along that New York City has the voting machines it needs to implement ranked-choice voting in 2021, which is great news," Common Cause's deputy director, Sarah Goff, told Gotham Gazette. "That means that there will be no additional costs to the taxpayer in this regard."

The city BOE can get the required tabulation software upgrade from ES&S or through the Ranked Choice Voting Resource Center, she said ("Both are great options"), "and that is the only infrastructure upgrade that we'll need to scan, count, and tabulate votes in New York City."

The RCV report states that the city BOE will use vendor-provided software and "has communicated with the State Board for a determination whether State Board vendor approval and/or certification of software is required." But Douglas Kellner, the Democratic co-chair of the State Board, denied his agency had received any such communication. "If the DS200 requires a software update that requires certification and as far as I know that software update has not been submitted to the state board for certification or for a determination that it's not subject to certification," Kellner said by phone, referring to the current machines used by the city board.

The New York City Board of Elections did not respond to a request for comment for this story.

While acknowledging the immense challenge of administering elections during a pandemic, advocates looking ahead to ranked-choice voting in 2021 are worried that the city BOE is not moving quickly or deliberately enough to have the new format in place and ready for voters.

Meanwhile, the Express Vote XL certification process is still ongoing. "There have been some issues that arose during the testing process and we're still at least a couple of months away from a final certification report, assuming that there are no new issues," Kellner said.

At a certain point, the city may need to adopt new, larger machines if it is going to allow county-wide polling centers, which many of the same RCV advocates have been pushing for. But that does not need to happen all at once, especially before the RCV roll-out and while the current machines still work, advocates say.

"The DS200s, I believe have a shelf life of ten to fifteen years," Goff said, which she said was a few years away. "So some kind of new voting machine would need to happen."

"We've obviously taken the public position that it should definitely not be the ExpressVote XL," she added, "but that is a decision that will have to be made in the next few years."

Kellner said the city board can be "overly reliant on ES&S on how to address the problem."

"It is very easy to become dependent upon a vendor for solutions to issues that really should be addressed in-house, because it's easier," he said. "It's easier to just pick up the phone and say, 'Can you guys do it for us and we'll pay you for it?"

***
by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

Read more by this writer.



Print Friendly and PDF

Editor's Choice


Gotham Gazette: New York Voters Approve $4.2 Billion Environmental Bond Act
New York Voters Approve $4.2 Billion Environmental Bond Act
Gotham Gazette: 
New York City Voters Approve Racial Justice Ballot Measures
New York City Voters Approve Racial Justice Ballot Measures
Gotham Gazette: 
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Gotham Gazette: 
City Council Examines Low Voter Turnout, Moving Local Elections to Even Years City Council Examines Low Voter Turnout, Moving Local Elections to Even Years