Let us vote
Or why New York City's Board of Elections should reject complaints from some City Council members and instead allow housing related ballot proposals to go to voters on Election Day.
Some members of the City Council have complained to the New York City Board of Elections urging the Board to block proposed ballot questions on housing from going to voters this fall.
Below is the email I sent the Board of Elections. These talking points from Open New York include additional messages and ways to contact the Board of Elections, and Abundance New York’s Twitter feed links to other advocacy efforts.
Dear Commissioners,
I'm a Brooklyn resident and New York City voter, and I strongly urge the Board of Elections to ensure that the Charter Revision Commission's proposed ballot questions appear on the November ballot. Failing to do so would deprive New Yorkers of meaningful democratic input into how our city works, would be a legally deficient action, and would set a dangerous precedent.
Increasing housing availability is the top issue for me and for New York, and these ballot questions offer thoughtful options to respond to that crisis. The ballot questions’ language has been extensively reviewed and certified by the City Clerk in early August. New Yorkers deserve to vote on these options this fall.
Beyond the merit of these proposals -- an issue for New Yorkers to rightfully decide on Election Day -- the complaints from some City Council members seeking to keep these questions off the ballot lack a legal basis and do not provide any reason for the Board of Elections to reject the proposals.
The legal standard and why Lenihan is not on point
The complaining letter cites Lenihan v. Blackwell for its proposition that the Board of Elections must reject ballot questions that do not meet the Municipal Home Rule standard to “clearly… indicate the effect of their approval.”
The complaining letter fails to review the facts in Lenihan, but we should. In that case, the Erie County Legislature put forward a ballot proposition to amend the County Charter to change the vote threshold for sales and use tax increases from two-thirds to a simple majority, but the proposition failed to mention that the vote threshold was being changed. Such a drastic omission is a far cry from any plausible reading of any possible deficiency in the propositions here.
While the complaining letter cites one example of the courts finding a ballot proposition legally deficient, we can readily imagine many more examples of frustrated advocates invoking Lenihan to argue against putting a ballot proposition to the voters. The complaining letter’s conspicuous absence of any other cases following Lenihan where courts have rejected misleading wording is suggestive of how Boards of Elections and the courts have refused to be unduly swayed by inevitable complaints about ballot proposition wording and instead followed Board of Elections’ ministerial duties to let voters decide contested propositions.[1]
The questions are clear
The proposed questions clearly indicate the effect of their approval with a contrast between “Yes” and “No” outcomes for each proposal.
Questions 2 and 3 make clear that they are changes to fast-track and simplify the review process and what process would be involved in the “Yes” state of the world. In both questions, the "No" position explicitly states that not making these changes would maintain the status quo which "leaves… final decision by City Council." That explicitly contrasts with the "Yes" position and makes clear that the City Council would not be involved in the "Yes" state of the world.
The complaining letter states that "Question 4 does not even indicate the authority of this newly created structure to overturn a democratic vote of the Council.” That is not a reasonable reading of the ballot language. The ballot language states that it “Establish[es] an Affordable Housing Appeals Board… to review Council actions”, and that a "No" leaves the status quo where final decisions are made by City Council (and are not appealable). The act of an appeals board to review actions clearly means it has the power to then uphold or overturn them. Otherwise, what possible function could its review have? The complaining letter provides no evidence of any usage or interpretation of an “appeals board” that does not include the power to overturn or uphold.
The city council’s criticisms about “fast tracking” are contradictory
The complaining letter is frustrated that the ballot proposals say they will “simplify” and “fast track” the process. The complaining letter notes that “the Council’s role in the current process is confined to 50 days,” instead placing the blame for delays as “significantly due to state law environmental impact requirements and the City Planning Commission’s own rules.” But the implication that these proposals won’t speed up action is contradicted by the complaining letter’s own arguments. As the complaining letter proudly states earlier, "Time and again, the Council has leveraged its central role in this democratic process to negotiate deeper levels of affordability in proposed housing construction and to secure substantial local investment." But of course, those negotiations take time, and that has an impact far beyond the formal 50 days for City Council review. The contradiction in the City Council's arguments is indicative of a "throw everything against the wall" approach that does not reflect careful legal reasoning.
Rejecting the ballot proposals is a dangerous precedent
Ballot proposals are inevitably divisive, and it’s always going to be tough for a contested (and word count limited) ballot proposition to be framed in a way that pleases all sides.
And you and I or the Council may have concerns about increasing charter commissions and the interplay between City Council and Mayoral charter commissions. It would be great to chat about, and I’m sure we could completely eliminate a lot of beers in our discussion.
But there remains one crucial and necessary role for ballot propositions: to give the voters the power to decide and adjust the process and powers by which government works. Those potential changes can be fiercely fought by participants already in government who are affected by those potential changes, and without ballot provisions on these direct questions there is no realistic way for voters to express their preferences on them.
When dealing with those types of questions, such as those in these ballot questions #2, #3, and #4, we should be particularly wary of self-interested (and unfortunately tardy…) arguments from political actors to remove well-constructed ballot propositions from going to voters.
It is unlikely you’ll receive many messages from voters about the language of these propositions, and the complaining letter suggests you’re hearing from many members of the City Council. I hope you interpret that imbalance as indicative of why it’s important for well-constructed ballot propositions affecting how government works to move forward as it’s only in the voting booth that the public will have a chance to meaningfully weigh in.
Thank you for your work, and I look forward to seeing it live on Election Day.
Sincerely,
Ramon Gonzalez
[1] Courts have found other ballot propositions inadequate, such as in Lieb v. Walsh (Albany Sup. Ct. 2014) which required the removal of “independent” as a description of a redistricting commission, but there the corrected provision still went out to the voters.