On November 3rd, 2016 the Lawyers Committee and LatinoJustice PRLDEF, along with pro bono counsel Dechert LLP, filed suit on behalf of Common Cause New York and individual plaintiffs. Plaintiffs amended their complaint in December of 2016. The amended complaint, filed in the United States District Court for the Eastern District of New York, alleges that the New York City Board of Elections has purged voters from the rolls in violation of the National Voter Registration Act of 1993 (NVRA). Plaintiffs seek the restoration of all purged voters to the registration list, and also that the Board of Elections count all affidavit ballots cast by these individuals in the November 2016 election.
Section 8 of the National Voter Registration Act makes clear that voters may only be removed from the registration list for a federal election in limited circumstances. The NVRA mandates that any voter who moves within New York City can be removed from the rolls for a federal election only if the voter receives notification from the Board of Elections, fails to respond to that notice, gets placed into “inactive” status, and then fails to vote in the two subsequent federal elections. Since the Board of Elections expunged voters who do not fit within any other legitimate basis for removal and without waiting for two federal election cycles, eligible voters were unable to cast a ballot in the November 2016 election. Earlier in 2016, the Board of Elections confirmed that more than 126,000 Brooklyn voters were removed from the rolls between the summer of 2015 and the April 2016 primary election.
Shortly before the November 2016 election, the parties reached an agreement under which the Board of Elections consented to providing various forms of notice to poll workers and voters concerning the requirement that all voters who believe they are registered must be offered an affidavit ballot on Election Day. The Board of Elections also agreed to send absentee ballots to individual plaintiffs who had previously been purged from the registration list.
On January 12, 2017, the U.S. Department of Justice filed a motion to intervene in this lawsuit. In addition to corroborating the Plaintiffs’ allegations and making similar claims under Section 8 of the NVRA, the DOJ alleged that there remain ongoing problems with the oversight of voter list maintenance procedures by the NYC BOE. DOJ raised the concern that without obtaining broad relief, these deficiencies could lead to the same or similar NVRA violations occurring again in the future.