A Manhattan federal judge ruled late last week that the New York State Board of Elections was violating the U.S. Constitution and federal election law by failing to maintain a list of inactive voters at polling locations throughout the state.

The 60-page ruling, issued late Friday by U.S. District Judge Alison Nathan, found that the state's practices had violated the equal protection clause of the Fourteenth Amendment, as well as provisions of the National Voter Registration Act, and required that the lists be made available to voters and poll workers on election day.

The decision is a win for a pro bono team of Dechert attorneys and two nonprofit legal rights groups that have been working for years to identify problems with the state's elections system.

Dechert, along with the Lawyers Committee for Civil Rights Under Law and LatinoJustice PRLDEF, filed the lawsuit in 2017 on behalf of client Common Cause New York, which advocates for clean elections, ethics in politics and voting rights.

According to the lawsuit, the state regularly changes voters' status from "active" to "inactive" when there was reason to believe they had moved before an election. The names of inactive voters, however, are not provided to workers at most polling locations across the state, leading to disenfranchisement, confusion and delay for voters, regardless of their status.

In her ruling, Nathan cited errors at the U.S. Postal Service and a national change-of-address registry for overcounting the number of New Yorkers that had actually moved, and said many were either not given an affidavit ballot or sent to the wrong polling location.

"In short, the state has shown no justification for not providing the inactive list benefits a voter who has moved and returns to her polling location," Nathan wrote. "Whether that voter is inactive or active, she receives no benefit from not having the list, and perhaps is harmed by the additional delay and confusion that its absence causes."

The board did not respond Monday afternoon to a call seeking comment on the ruling, which was first reported by WNYC and Gothamist.

The case, captioned Common Cause v. Brehm, was an offshoot of work Dechert partner Neil Steiner had done with the lawyers' committee and LatinoJustice on a 2016 challenge to a purge that removed some 117,000 voters from the state rolls because they had not voted in past elections. That lawsuit resulted in a November 2017 settlement agreement, requiring the board to identify voters who had been improperly purged and to formulate a plan to address election-law violations.

Steiner, who has litigated a series of high-profile voting rights cases in Kansas, Wisconsin and Ohio, said he and his team discovered thousands of registered voters during the course of that investigation that were not included in their local polling books, even though they had not moved.

The lawsuit asked for an order requiring the board to include a list of inactive voters at all state polling places, as well as a decree allowing inactive voters to use regular ballots, as opposed to affidavit ballots, which are counted after Election Day.

While Nathan found clear constitutional violations with respect to the lists, she did say the state had legitimate interests in requiring the use of affidavit ballots.

"We're delighted that Judge Nathan's ruling protects the rights of inactive voters who have not moved and will also reduce confusion and wait times for all voters," Steiner said in a statement announcing the ruling.

Reached by phone on Monday, Steiner also said pro bono cases such as this one provided a chance for Dechert's younger attorneys to cut their teeth during a four-day trial in October. Steiner, who handled strategy and closing arguments, said associates Anna Do and Tharuni Jayaraman cross-examined key witnesses and gained real trial experience.

"They're great cases for the firm" and "great opportunities for associates," he said.

The LCCR said in a statement Monday that the issues raised in Nathan's decision were "emblematic of barriers across the country" that lead to voter suppression.

"This landmark decision tears down a wall that threatened to block millions of New York voters from the polls, and should also serve as precedent against efforts to suppress voting rights across the country," the group's president and executive director, Kristen Clarke, said.  "Our democracy works when every legitimate voter can exercise his or her fundamental right and cast a ballot that counts. The Court's decision reflects how New York's antiquated voting laws and procedures have disenfranchised voters and that they continue to need reform."

Susan Lerner, executive director of plaintiff Common Cause, called it a "huge victory" that would "tears down a wall" for New York voters.

"Now, at every poll site throughout New York, inactive voters will no longer be denied their basic right to vote," she said.

The litigation team also included Hilary Bonaccorsi and Katherine Shorey of Dechert; John Powers and Ryan Snow from the LCCR and Jackson Chin and Jose-Luis Perez of LatinoJustice.

The state defendants were represented by William J. McCann Jr. and Brian Lee Quail of the state Board of Elections, Nicholas Robert Cartagena of the Lonstein Law Office and Douglas A. Kellner of Kellner Herlihy Getty & Friedman.

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