Mayor de Blasio votes (photo: Michael Appleton/Mayor's Office)

Many eyes will be on the New York City Board of Elections come Tuesday as New Yorkers head to the polls for the second time this year, casting their votes in congressional primaries. The first election, April’s presidential primaries, was so problematic it prompted multiple city and state authorities to launch investigations into the city BOE and caused Mayor Bill de Blasio to offer an extra $20 million in funding for the agency, conditional upon the enactment of certain reforms.

Because of the structure of the law, the Mayor cannot make structural reforms at the BOE. “We need a state law change,” de Blasio said during a June 23 appearance on WNYC’s The Brian Lehrer Show when asked by a caller how to get rid of the “corrupt system” at the BOE. “We can no longer have a BOE that is run unprofessionally and in an outdated way…this is a non-functioning part of our democracy.”

The BOE is comprised of ten commissioners, five from each of the two major political parties, two from each borough, who are (traditionally) appointed by the county party chairs and approved by the City Council. The commissioners then appoint staff to the city’s BOE and have authority over all city BOE employees, including the executive director, currently Michael Ryan.

“I wish it was a pure city agency. If it was under my power, I would tear it down the current reality and start over,” de Blasio added on WNYC, calling the failures of the April 19 primary “pure incompetence” on the part of the BOE. “We literally need to make the BOE closer to other city agencies so the executive director should run it and have the power to put in modern management approaches and have accountability.”

As of June 7, the 120,000 Democratic voters in Brooklyn who were mistakenly purged from the voter rolls have been restored in an attempt to avoid again disenfranchising those who had been turned away or forced to sign affidavit ballots during the primary (90,000 of 121,000 affidavit ballots were rejected and will not be counted). Two employees at the Brooklyn BOE office have been suspended without pay pending an investigation into why the names were incorrectly removed from the voter rolls in the first place.

The BOE has yet to accept de Blasio’s $20 million offer, likely out of reluctance to adopt the reform plan attached to the funds, which includes improving poll worker training and hiring an outside consultant. The BOE did not respond to requests for comment for this article.

“Given all of what’s swirling around this particular election event, our singular focus is making sure that the votes are counted and that the certification is accurate, said BOE executive director Michael Ryan at an April 27 BOE meeting, one day after the mayor announced his offer. “Once we complete that process, I’m sure we’re going to have time to pick our heads up and focus in other areas and we will get to that at the appropriate time. We’re just not in a position to speak either intelligently or publicly on any proposals that are made by anyone right now because we have to, like a laser, focus on getting this election certified and certified properly.”

The mayor and the City Council reached a deal on the budget for the upcoming fiscal year June 8 - one that did not include added funding for the BOE - which de Blasio addressed after announcing the deal by saying, “that discussion is not over, to be fair. I am not thrilled that it hasn’t been agreed to…I would have thought that answer would have been a very fast yes.”

“We can restart that conversation any time,” de Blasio added, though it’s a conversation the city BOE seems unlikely to “restart.”

As evidence of BOE incompetence, cronyism, and corruption has mounted over the years, few seem to know where to direct their ire. The changes in state law that de Blasio referenced were not part of the discussion in Albany as state legislators and Gov. Andrew Cuomo negotiated end-of-session deals earlier this month.

Since the presidential primaries, New York State Attorney General Eric Schneiderman has opened an investigation into the BOE and New York City Comptroller Scott Stringer has launched an audit into the agency’s operations and management, calling the BOE “consistently disorganized, chaotic, and ineffective.” City Council Member Ben Kallos, chair of the Council’s government operations committee, has promised to hold an oversight hearing on the BOE, though he also grilled BOE officials at the agency’s executive budget hearing May 13.

“Hope springs eternal,” Kallos replied dryly when asked if he believed the heightened scrutiny the BOE is currently facing would help to bring about any changes to the way the agency operates. “I hope that by bringing the commissioners to the City Council to be held personally accountable, we may get the change we are seeking,” Kallos said.

Tensions have remained high since April's primaries, with voters consistently attending weekly meetings held by the BOE to express their frustrations and demand answers. Dozens of angry voters showed up at the Voter Assistance Advisory Committee’s May 17 hearing on issues with the primaries, and many who testified were livid, speaking in loud and frustrated tones about the obstacles they encountered trying to cast their votes, as well as the treatment they faced from BOE officials during a hearing held by the BOE on May 3.

Many who testified were irate that they had been forced to sign affidavit ballots - they knew they were registered to vote, having previously voted in New York city and state elections, they said.

Issues at the BOE aren’t just about the recent Brooklyn voter purge, which was discovered by WNYC. Other primary day problems were indicative of long-standing BOE problems: missing ballots, missing voter rolls, broken ballot machines, poll workers showing up late or giving incorrect instructions. The BOE also sent tens of thousands of newly registered voters notices with the incorrect date for upcoming state and local primary elections.

The BOE performance around the April primaries reinforced its reputation for dysfunction. Key questions now linger more forcefully ahead of Tuesday’s congressional primaries, September’s state-level primaries, November’s Election Day, and the 2017 city-level elections. Chief among them are who actually holds the BOE accountable and how must the BOE be reformed?

Before Michael Ryan was just barely appointed in 2013, the city BOE went without an executive director for three years, as the party-split commissioners were unable to agree upon a replacement for the former executive director, George Gonzalez, who was fired after a series of failures administering the 2010 September primary and additional mistakes leading up to the general election.

A number of city and state agencies and offices have some authority over the New York City Board of Elections, yet ultimately, the power to change it lies with the state Legislature. “The most important decisions about the Board of Elections occur in Albany,” de Blasio said, speaking with press after announcing the budget deal. “We need fundamental change, and one of the things we most need from Albany is legislation that will empower the executive director and the professional staff of the Board of Elections, rather than what is the traditional power structure.”

The Mayor can use his budget powers to try to force change at the BOE. The City Council can hold oversight hearings examining how the BOE operates. The city’s Department of Investigation can investigate the BOE and recommend reforms, which it did in 2013 when it issued a report identifying fundamental flaws and recommending over 40 reforms to improve the agency (which the BOE largely ignored). The city’s Conflicts of Interest Board also has some oversight, and has fined BOE employees for hiring members of their own family in the past.

Additionally, the city Comptroller’s office has the power to audit and investigate the BOE, which can make the agency’s operations and finances more transparent and accountable, since the BOE is funded by the city (though the laws that mandate its structure and duties are controlled by the state). Stringer’s office released an audit on June 6 of BOE inventory practices for office equipment and voting machines, and is currently conducting another audit of BOE operations and management. The June 6 audit revealed that the BOE's inventory records for both voting and office equipment "were incomplete and inaccurate," as well as "numerous instances of noncompliance" with other inventory practices, including "the existence of duplicate serial numbers" and "more than 1,000 items" on-site that had been omitted from the BOE's inventory records.

The Voter Assistance Advisory Commission, which advises the city’s Campaign Finance Board on voter engagement efforts and recommends changes to improve elections, passed a resolution at its May 17 hearing to compile election irregularities and systemic problems and relay them to BOE, to everyone currently investigating the agency, and to the City Council. Yet, true to it’s name, VAAC can only serve in an advisory capacity, and can take actions to facilitate voter registration, but, like the DOI and other agencies with oversight capacities, is essentially powerless to bring about any meaningful structural reform at the BOE.

“At the end of the day, what really has to change is state law,” said Eric Friedman, assistant executive director for public affairs at the CFB.

“The problem is, it’s all reactive,” State Senator Michael Gianaris, a Queens Democrat, told Gotham Gazette. “Something has gone wrong, and then the appropriate government agencies act - entities that fund the board can try to extract reforms.” Yet “what is really needed is to reform the structure of the board,” Gianaris added, referring to the patronage system at the BOE through which employees are appointed by the board’s ten commissioners, who themselves are selected based on their affiliation with the two major political parties (one Democratic commissioner and one Republican commissioner from each borough, appointed by the county party chairs).

“We’ve been asking them to end patronage since I got into office,” Kallos said.“State lawmakers need to amend the state law that allows BOE to have a patronage system and replace it with a civil service system - the same system that we used to root out patronage from Tammany Hall."

“Having patronage codified in the law is the problem,” Kallos added. The State Senate and Assembly have “created the laws governing the BOE in every county, and many of these reforms could happen there quite easily.”  For example, the New York State Constitution currently mandates that “Party recommendations for election commissioner shall be made by the county committee or by such other committee as the rules of the party may provide, by a majority of the votes cast at a meeting of the members of such committee at which a quorum is present.”

But it’s not all that easy to bring about this sort of change in Albany, says Susan Lerner, executive director of the government reform group Common Cause NY, because “the people who could make change are our state representatives, some of whom are actually county chairs…so long as the county chairs regard the BOE as a place to park people who couldn’t get jobs otherwise and who are party loyalists, we will continue to have a problem.”

What’s needed, Lerner says, is a system that chooses people to administer elections based on their experience administering elections or managing complex systems, not a system in which local political parties use patronage to reward party loyalists.

BOE commissioners, Kallos says ruefully, are “accountable to the county party chairs who appoint them under state law.”

“Ultimately, one would hope that the executive director would be where the buck stops,” Kallos said. Yet, at an executive budget hearing in May, Kallos was “disappointed to learn that the executive director can’t fire his employees, and despite the problems of the last election,” two of the people who were responsible “remain suspended without pay, but not terminated.” Since the executive director doesn’t have the power to terminate employees, the “ten commissioners need to be held accountable, if they refuse, then it goes to the County Chair who appointed them,” Kallos said.

While Kallos sees “overlapping responsibility for the BOE,” Lerner believes “there isn’t actually any real authority,” as “the BOE is a highly politicized body and election law has deliberately set it up so that it really isn’t clear who it is answerable to.” The chairs of the election law committees in the Senate and the Assembly are Senator Fred Ashkar and Assemblymember Michael Cusick, neither of whom responded to requests for comment for this article.

“It appears that the party county chairs could hold their appointees accountable, but there isn’t any clear line of authority in that regard,” Lerner said. “From a taxpayer's point of view, from good election administration point of view, this is not a good system - there should not be any agency which does not have clear oversight, and certainly you should not have a taxpayer-funded entity that doesn’t have to be responsive to the taxpayers.”

De Blasio, Gianaris, Kallos, Lerner, and others view the patronage system as the root of the problem and the cause of the BOE’s persistent failures when it comes to administering elections and performing its other duties. There is a strong sense among those who spoke with Gotham Gazette that the city BOE is not accountable to the voters; that it is accountable to the county party chairs; and that the people who could improve the structure of the BOE don’t have any incentive to do so. A number of city officials and agencies, like the City Council and the DOI, have repeatedly recommended replacing this patronage system with merit-based employees, which would require changing state election laws and amending the state constitution.

In the meantime, people like Gianaris, Friedman, Kallos, and others are looking to get other changes to state law passed that would also improve the way elections are administered. Bills have been introduced in the Senate and the Assembly to make voter registration automatic, expand online voter registration, allow early voting, extend registration deadlines, consolidate the state and federal primary election dates, improve New York’s confusing ballot design, and more.

One of the more comprehensive pieces of voting reform legislation currently introduced in Albany is the Voter Empowerment Act (introduced by Gianaris in the Senate and Assemblymember Brian Kavanagh in the Assembly (Kavanagh was not made available for comment). Kallos has introduced a resolution in the City Council calling on the state to pass the act). The Voter Empowerment Act seeks to update New York’s registration process by expanding online registration and modernizing the way voter information is collected, processed, stored, and shared.

Gianaris calls the VEA an attempt to improve the way elections are administered, “getting at it from the point of view of not really tackling the structure - which is a huge can of worms - but just trying to get at some of the specific ways we can change the laws to make it easier” to register to vote and to maintain accurate voter rolls.

“The Voter Empowerment Act would actually address a lot of the problems that people were talking about from the April 19 primary,” said Friedman, of the CFB. “It would create universal online registration, so that voters could literally take ownership of their voter registration in a way that is impossible with the current pen and paper system.”

Should the Voter Empowerment Act pass, the legislation would improve the accuracy of New York’s voter rolls by reducing the number of outdated or duplicate registration records. Ryan has said that the purge carried out by the Brooklyn BOE office was a response to the DOI’s 2013 report slamming the board for failing to remove ineligible voters from the rolls.

“Better elections start with better election laws,” says Friedman, who traveled to Albany in May along with other members of the CFB and VAAC for the third year in a row to persuade lawmakers to pass the VEA and two other voting reforms: better ballot design and early voting. “The Voter Empowerment Act would make a real difference - devolving power from the administrators to the voters by giving them ownership of the voter records through online registration would make a big difference.”

For now, Lerner, Friedman, and others say the voters should stay mad, keep attending BOE weekly meetings, and keep the pressure on those who have the ability to make a difference: the BOE commissioners and state lawmakers.

The BOE could easily choose to improve its own operations by changing hiring policies or providing better training for poll workers. “I think what we’ve seen in practical, immediate terms, is that the BOE is responsive to public outrage,” Lerner said. “I think if the county chairs and members of the Legislature said to the BOE, ‘you’re making us all look bad,’ there is more potential for the board to improve its procedures.”

Since the last NYC Votes trip to Albany lobbying for better voting laws,19 more sponsors have signed on to the VEA, and 17 new sponsors signed on to the Voter Friendly Ballot Act. Thirty-seven additional sponsors signed on to early voting bills, which have now passed in both the Senate and the Assembly election committees.

The fact that the BOE Brooklyn voter purge “happened to begin with points out a fundamental reality,” de Blasio said after the budget handshake. “A managerial dynamic that is not modern, not up-to-date, not professional enough, and must be updated, or we’ll just keep having this problem.”

“New Yorkers should be pressing all of their leaders, including in Albany,” de Blasio said. ”We call ourselves a progressive state but when it comes to electoral reform we are fundamentally backwards. I think the people are going to rise up on this one."