Photo: Christian Schwier

The New York Board of Elections recently defended the state's 25-day voter registration deadline in a motion to dismiss litigation that could open the door to getting persons on voter rolls closer to Election Day.

The lawsuit has the potential to immediately condense New York's voter registration deadline to 10 days before an election and may also allow the state to implement same-day registration without approval from the Legislature, an attorney litigating the case said.

The case was first brought in November by the New York Civil Liberties Union on behalf of Nicholas Dinnerstein, a Brooklyn resident who said he was unable to vote in last year's election because he missed the 25-day registration deadline. Dinnerstein said he was unaware of the deadline after recently moving back to New York from another state.

Perry Grossman, a senior staff attorney with the Voting Rights Project at NYCLU, is among the lawyers representing Dinnerstein in the case along with attorneys from Latham & Watkins in Manhattan.

“There's a long-time understanding that there should not be unnecessary impediments to the franchise in New York law,” Grossman said. “The 25 day deadline is absolutely an unnecessary impediment to the franchise.”

The state Board of Elections, represented by the attorney general's office, said otherwise in its recent motion to dismiss the lawsuit. The state argued that the 25-day deadline should remain until the Legislature changes it, and that the current limit is “reasonable” given the amount of work local governments have to do to prepare for an election.

“The Registration Deadline at issue disenfranchises no one,” the state said. “Rather, it merely imposes a reasonable time deadline that a prospective voter must meet in order to vote in the next election.”

That's just one among several arguments the state made to have the lawsuit thrown out, according to the filing. The others include positions that may not mesh with the current views of the state Legislature, which is controlled by Democrats in both the Assembly and Senate.

For one, the state argued that an advanced registration deadline can help prevent voter fraud, and that similar laws have been widely used throughout the country as a means to that end. “The Registration Deadline is rationally related to a legitimate state interest,” the state said. “Prior registration as a condition of voting has been a common feature of states' election law for much of the Republic's history.”

Grossman balked at the argument, calling voter fraud a “myth” used to impose more restrictive practices in election law, which is the same argument Democrats in the Legislature have used to push for same-day registration.

“The notion of in-person voter fraud is ridiculous,” Grossman said. “Nobody shows up at the polls and claims to be somebody else. It's not something that happens in any widespread way.”

The state also argued that a court should not be tasked with evaluating whether local governments could prepare for an election any faster today than they could more than two decades ago, when technological advances were less widespread. The Legislature would be better tasked with such a review, the state said.

“The task of determining the extent to which the technological advances of the last 28 years call for modification of the required steps for processing and verifying registration applications is not within the expertise or constitutional function of the courts,” the state said. “It is rather for the legislätive branch of the government to undertake, with the assistance of the executive expertise of the elections officials who have to perform the processing and verification of voters.”

The Legislature has already started taking steps to address the current voter registration deadline, but the process to shorten it is expected to take at least three years. That's because lawmakers have said they need to amend the state constitution to cut the deadline.

Such a change requires the Legislature to approve a bill twice on the proposed amendment—once this year and once in 2021 when the next class of lawmakers takes office. The proposal is then put on the ballot later that year for voters to approve, which means the change would not take effect until 2022 at the earliest.

This year's Legislature has already voted to approve the amendment, which will now head to the next Legislature for a vote in 2021. But Grossman argued that the issue is too urgent to wait for the idea to become law in three years, and that the proposal could be at risk of failing at any point along the way.

“If anybody wants to tell me what Albany is going to do next session, and what the governor's going to do after that, and then what the voters are going to do after that … even if it's likely that all those actions will occur, everyone has a contingent step,” Grossman said. “The most important thing is that a presidential election is going to happen in 2020 when we know that this law disenfranchises people.”

The lawsuit, meanwhile, could immediately shorten the voter registration deadline from 25 days to 10 days if the court sides with the plaintiffs. Grossman said the law could also be viewed to allow for same-day voter registration as a supplement to the shorter registration period, rather than an idea that some interpret as contrary to the state constitution.

“The two are not necessarily mutually exclusive,” Grossman said.

He also argued that lawmakers could act now to reduce the voter registration deadline to 10 days, rather than the current 25. Only the former is referred to in the state constitution, Grossman said, so the Legislature could pass a bill now to immediately shorten the deadline.

“I think reducing it down to the 10-day is something we could all agree is stone cold law,” Grossman said. “I'd like to see the Legislature moot the lawsuit by repealing the 25 day deadline.”

The lawsuit is hinged on a section of the state constitution that ensures New York residents will be “entitled to vote at every election.” Dinnerstein, Grossman argued, was not entitled to that guarantee because of the 25-day registration deadline.

The case is before Justice Julio Rodriguez III in Manhattan Supreme Court.

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