The following papers numbered 1 to 13 read herein: Papers Numbered Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1, 2-3, 4, 5, 6-9 Opposing Affidavits (Affirmations) Reply Affidavits (Affirmations) 10, 11, 12 Transcript of Oral Argument 7/25/19 13 Upon the foregoing papers, defendants Bitta Mostofi, as Commissioner of the New York City Mayor’s Office of Immigrant Affairs (MOIA), and Ayirini Fonseca-Sabune, as Chief Democracy Officer of the City of New York (collectively referred to as the City Defendants),1 move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint. Plaintiff Board of Elections in the City of New York (Board) cross-moves for an order, pursuant to CPLR 3212, granting it summary judgment declaring that the language assistance program (Interpreter Program) sponsored by the City Defendants violates the provisions of Article II, §8 of the New York Constitution and is therefore invalid and may not be implemented, and that the local law funding the Mayor’s Office of Immigrant Affairs (MOIA) program providing language assistance is preempted by the Election Law. The City Defendants’ motion is granted to the extent that it is declared that the Interpreter Program intended to expand the availability of interpretation services to voters with limited English proficiency (LEP) currently operated jointly by MOIA and the Chief Democracy Officer (CDO) of the City of New (City), along with the City Council budget resolutions funding the Interpreter Program, do not violate Constitution, Article II, §8 and are not preempted by the Election Law or the federal Voting Rights Act. The Board’s cross motion is denied. FACTUAL AND PROCEDURAL BACKGROUND For the last several years, the Board, in response to requirements of the federal Voting Rights Act, federal regulations, various judgments against it and consent decrees entered into by it, has provided language assistance for LEP voters in Spanish, Chinese (in Cantonese and Mandarin), Korean and Bengali in the form of written materials and the provision of interpreters, bi-lingual election inspectors, and poll clerks at certain targeted polling sites. In 2016, in order to address the significant number of naturalized citizens in the City with limited English language proficiency whose primary language is not covered by the Board’s language assistance programs, MOIA and the New York City Campaign Finance Board partnered to provide voter registration forms in 11 additional languages.2 In November 2017, MOIA expanded on this program relating to registration forms with a pilot Interpreter Program providing Russian and/or Haitian Creole interpreters at 20 poll sites in Brooklyn. For the November 2018 general election, MOIA’s Interpreter Program provided Russian, Haitian Creole, Yiddish, Italian, Polish, and Arabic interpreters at 101 poll sites. MOIA communicated with the Board regarding the Interpreter Program prior to both the 2017 and 2018 general elections, and adhered to the Board’s request that MOIA station its interpreters at 101 feet or more from the poll sites. The Office of the Mayor’s Democracy NYC initiative joined with MOIA in planning for the provision of poll site interpreters for the February 26, 2019 citywide special election for public advocate. The plans for this special election included the provision of interpretation services in Russian at 40 poll sites, Haitian Creole at 5 poll sites, Yiddish at 2 poll sites, and Polish at 1 poll site. Prior to this special election, the City Defendants formally requested that the Board allow them to station the interpreters within the respective poll sites. Fonseca-Sabune attended the Board’s meetings on January 4, 2019 and January 15, 2019, at which point she provided the Board’s Commissioners with information regarding the poll sites at issue, how the languages were selected, how interpreters were trained and supervised, and how they would provide their services. Fonseca-Sabune thereafter sent the Board a letter dated February 13, 2019, in which she indicated that the City intended to station its interpreters within the 100-foot boundary even absent the Board’s consent. In view of this disagreement, the Board commenced this action on February 22, 2019, in which it asserted, as is relevant here, a cause of action for a declaratory judgment that the Board had a right to enforce a rule barring MOIA interpreters from being stationed within 100 feet of the entrance of poll sites for the February 26, 2019 special election, as well as in all future elections. The Board further sought a permanent injunction barring MOIA interpreters from being stationed within 100 feet of the entrance of polling places for the February 26, 2019 special election and in all future elections unless authorized by the Board.3 At the same time, the Board moved for a preliminary injunction barring MOIA from stationing its interpreters within 100 feet from the polling site entrances. In an order dated February 25, 2019, the court denied the request for a preliminary injunction, finding that the Board had failed to demonstrate by clear and convincing evidence a likelihood of success on the merits, that it would suffer irreparable harm, or that the balance of equities weighed in its favor. Prior to the City Defendants answering, the Board served and filed an amended complaint that significantly changed the focus of its action against the City Defendants. In this amended complaint, the Board added allegations that the City Council has allocated funding for MOIA’s Interpreter Program in fiscal year 2017, 2018. and 2019 budgets, and emphasized that, with each election for which MOIA has provided interpreter assistance, the number of interpreters, the number of poll sites, and the number of languages provided has varied considerably. Based on these assertions, the Board alleges that it is entitled to a judgment declaring that the operation of the program in its entirety, and not just its operation within 100 feet of the poll site entrances: (1) violates the constitutional requirement that matters relating to elections be conducted by a bipartisan agency under New York Constitution article II, §8; (2) is preempted by the Election Law, and (3) is preempted by the federal Voting Rights Act. Defendants have answered and have moved for summary judgment dismissing the complaint and the Board, in turn, has cross-moved for summary judgment requesting, as noted above, a declaration that MOIA’s Interpreter Program violates New York Constitution article II, §8 and is preempted by the Election Law. In moving, the City Defendants emphasize that the Interpreter Program falls within the bailiwick of MOIA’s responsibility to advise and assist the Mayor and the City Council with policies that provide assistance with respect to language accessability for immigrants and speakers of languages other than English in the City (New York City Charter §18 [b] [ 1 ]). Mostofi, in her affidavit, states that the City relied on a third-party vendor to recruit and hire interpreters, but that it provided City employed supervisors to train and supervise the interpreters. Among other things, Mostofi stated that the training sessions and the materials provided to the interpreters emphasize that their responsibilities are strictly limited to providing interpretation services, and that they are not to engage in electioneering or political discussions. Additionally, in the event the interpreters enter the voting area to assist a voter, they are instructed to sign an affidavit agreeing only to interpret and not to influence the voter in anyway,4 to read the entire ballot to the voter, and not to mark the ballot or write anything down while they are in the voting area. The City Defendants also provide an affidavit from Samuel Solomon, a MOIA director, who states that MOIA used census data to select the language and the poll sites in a manner consistent with the process used by the Board with respect to its interpreter program. However, he further states that, with respect to the November 2017 general election, budget considerations had an impact on the number of languages provided, the interpreters hired, and the poll sites covered. The Board, in opposing the motion, and in support of its cross motion, submits an affirmation from Steven Richman, Esq., its general counsel, in which he describes the Board’s own provision of language assistance to LEP voters as required by the federal Voting Rights Act, court orders and consent decrees. In addition, Richman states that, despite the City Defendants’ assertion that its Interpreter Program has assisted a total of 2,850 voters over the three elections, there are only 248 affidavits showing that interpreters actually provided assistance during the voting process. The Board asserts that this discrepancy reflects the possibility of partisanship in the administration of the Interpreter Program. In arguing that the City Defendants’ Interpreter Program is barred by New York Constitution article II, §8, and/or is preempted by the Election Law, the court notes that the Board has otherwise provided no evidentiary proof attacking the City Defendants’ assertions regarding the selection of languages and poll site locations, or the training of the interpreters. It is in this factual context that the court considers the applicable law. NY CONSTITUTION ARTICLE II, §8 The Board first contends that the City Defendants’ Interpreters Program violates New York Constitution article II, §8, which provides that: “All laws creating, regulating or affecting boards or officers charged with the duty of qualifying voters, or of distributing ballots to voters, or of receiving, recording or counting votes at elections, shall secure equal representation of the two political parties which, at the general election next preceding that for which such boards or officers are to serve, cast the highest and the next highest number of votes. All such boards and officers shall be appointed or elected in such manner, and upon the nomination of such representatives of said parties respectively, as the legislature may direct. Existing laws on this subject shall continue until the legislature shall otherwise provide. This section shall not apply to town, or village elections.” Although there is scant case law addressing the application of this section, both sides rely on the Court of Appeals decision in Clark v. Cuomo (66 NY2d 185 [ 1985]), which addresses this constitutional provision in a relevant context. At issue in Clark v. Cuomo was Governor Mario Cuomo’s Executive Order No. 43, a 1984 order that led to the establishment of a program in which state agencies would make voter registration forms available to members of the public and, through their staffs, provide assistance in filling out the forms (Clark, 66 NY2d at 187). Under the program as implemented, the persons filling out the forms could then leave them in a receptacle for transmittal to or pickup by the local Board of Elections, or mail the forms directly to the Board of Elections (id.). The Court of Appeals found that Executive Order No. 43 did not violate NY Constitution article II, §8, stating, “[a]lthough the program and Task Force created by Executive Order No. 43 clearly do not afford such bipartisan representation, that requirement is inapplicable because Executive Order No. 43 is not a law and because the personnel who implement it do not register voters, distribute ballots or receive, record or count votes at elections” (id. at 191). The Court of Appeals rejected plaintiff’s argument that the program registered voters by stating, “We hold, at least when implemented in conjunction with the injunction against providing locked receptacles, and thus constituting only a means of distributing and assisting in the completion of voter registration forms, that it does not” (id.). The court went on to state: “It matters not whether registration is complete at the time the application form, if timely mailed, is received by the local Board of Elections, as plaintiff claims (Election Law §5-210[3]), or, as defendants contend, after the application has been reviewed by a bipartisan team of Board employees (Election Law §5-210[6][a]). The mere distribution of registration forms and rendition of assistance in completing them does not approach either critical event and thus does not implicate the constitutional requirement of bipartisan representation. Although a ‘but for’ analysis arguably would require a contrary result, because the critical stage could not be reached unless someone supplied the forms and helped registrants fill them out where necessary, such an interpretation would, as a practical matter, preclude all private voter registration drives and thus be completely contrary to the expressed legislative policy of encouraging as widespread voter registration as possible” (id. at 191-192 [footnotes omitted]). The Court of Appeals, however, affirmed an injunction barring the registration program from providing receptacles for the completed registration forms at various agency offices that was imposed by the Appellate Division (Clark, 66 NY2d at 192-193). The Court found that this portion of the program “too closely approaches the critical stage of delivery to the local Board of Elections, thus rendering the agency, for all intents and purposes, a ‘branch office’ of the Board” (id. at 192). The Court reasoned that: “The potential for mischief when the key to the box, and the transportation of its contents to Board offices, are the responsibility of agency personnel, is obvious. Less obvious, but in our view also infused with both the perception of and potential for abuse, is the presence of the locked receptacles even in other circumstances. We believe that any impact on the program of requiring registrants to mail in their completed forms is outweighed by the elimination of the potential for abuse when such forms are in the custody of the Postal Service. Accordingly, we conclude that so much of the injunction as applied to the use of locked receptacles was, under the circumstances, properly issued” (id. at 192-193). In considering the impact of Clark on the determination here, the Board asserts that, unlike the executive order at issue in Clark, the City Council’s budget allocations for the Interpreter Program in the budgets for fiscal years 2017, 2018 and 2018 effectively render the program a law for purposes of NY Constitution article II, §8. While the budget adopted by the City Council undoubtedly has the force of a law (see New York City Charter §§254, 255 and 256; Matter of Mohr v. Greenan, 10 Misc 3d 610, 612-613, 615 [Sup Ct, Erie County 2005], affd 37 AD3d 1094 [4th Dept 2007]), the Mayor’s earmarking of certain appropriations for a particular administrative program in the proposed budget, and the subsequent approval of the budget by the City Council, does not render said program the equivalent of a law.5 Indeed, if the mere earmarking of funds for an administrative or executive program made the program a law, virtually all executive and/or administrative actions could be deemed to constitute laws, since such actions are all enabled to some extent by a legislature approving a budget. Thus, the court finds that since the Interpreter Program, much like the executive order at issue in Clark, was not enacted by a legislative body (see Clark, 66 NY2d at 191, citing Schumer v. Caplin, 241 NY 346, 351-352 [1925]), it is not a law for purposes of NY Constitution article II, §8, and therefore does not violate its provisions. Next, noting that a voter’s ability to understand the ballot is fundamental to the ability to cast his or her vote (see Puerto Rican Org. for Political Action v. Kusper, 490 F2d 575, 580 [7th Cir 1973]; Madera v. Detzner, Madera v. Detzner, 325 F Supp3d 1269. 1279 [ND F1 2018]; Torres v. Sachs, 381 F Supp 309, 312 [SDNY 1974]; see also OCA Greater Houston v. Texas, 867 F3d 604, 614-615 [5th Cir 2017]; Voting Rights Act, 52 USC §10503), the Board argues that the City Defendants’ provision of language services is so “inextricably intertwined” with the acts of receiving and completing the ballot and casting and recording votes that it must be considered akin to the provision of receptacles for completed registration forms, which the Court of Appeals found to be improper in Clark. This argument is unavailing. That an interpreter’s services may be necessary for a voter to intelligently exercise his or her franchise does not make those services part of the Board’s functions in distributing ballots to voters, or receiving, recording or counting the votes. Nothing in the description of the program or the training materials suggests that the City Defendants intend that the program’s interpreters are to take on the Board’s role with respect to the ballots. In fact, the training materials expressly direct the interpreters not to engage in electioneering or political discussions, not to mark the ballots for the voters, and to swear to the affidavit required by the Board if they enter the voting booth with the voter.6 Providing interpreter services under the program is no more involved in the Board’s responsibilities than the state agency distribution of, and the assistance provided in filling out, the voter registration forms at issue in Clark, which the Court of Appeals found did not constitute the registration of voters. Contrary to the Clarke Court’s finding that the provision of receptacles effectively rendered the agency a “branch office” of the Board, nothing in the Interpreters Program involves a similar intrusion into the Board’s statutory mandate with respect to the ballots.7 Having asserted that a voter’s ability to understand the ballot is fundamental to the ability to cast his or her vote, the Board fails to explain how the elimination of the Interpreter Program would not, in effect, disenfranchise voters. Rather than violating the Election Law, the program is consistent with the Election Law’s policy of encouraging the broadest possible voter participation (Election Law §3-102 [14]; Clark, 66 NY2d at 190). The Court, in Clark, held that the effectuation of this policy is not limited solely to the State and County Boards of Election (Clark, 66 NY2d at 190). Nor is the court persuaded by the Board’s argument that there is a possibility of partisanship in the administration of the Interpreter Program based on the discrepancy between the number of oath affidavits collected by the Board and the number of LEP voters the City Defendants claim to have assisted. This discrepancy does not reflect a flouting of the oath requirements of Election Law §8-306 (5). The Interpreter Program training materials contemplate that the assistance provided by the interpreters would include assistance that did not involve entering into the voting area with the ballot. Further, as noted in Mostofi’s supplemental affidavit, the interpreters hired for the City Defendants’ interpreter program were instructed to keep track of all LEP voters with whom they have contact. As such, the number of voters assisted by the interpreters will necessarily be less than the number of interpreters who entered the voting booth to assist a voter who are thereby subject to the provisions of Election Law §8-306 (3)8 and required to swear to the oath required by Election Law §8-306 (5).9 Given that it is the election inspector’s duty to regulate entry into the voting area and obtain the oaths from persons rendering assistance to the voters in the voting area (see Election Law §§3-402 [3], 8-202 [2], 8-300 [1], 8-302 [3] [d], 8-306 [3]), the possible failure of a certain number of interpreters to provide oath affidavits, absent evidence of subterfuge on the part of the interpreters (which evidence is not before the court), demonstrates more a failure of the inspectors in carrying out their duties than a deficiency with the Interpreter Program. Accordingly, the discrepancy between the number of voters assisted by the voter program and the number of oath affidavits fails to show improper training of the interpreters, let alone that the Interpreter Program has been operated in a partisan manner or that it invades any core Board function with respect to the ballots. The Board also argues that the possible specter of partisanship arises from the inconsistent provision of interpreter services at different elections arising from the availability of funding for the program. While there is undoubtedly a danger that funding for the program could be manipulated so that the interpreter services, or lack thereof, would favor certain parties or groups at different elections, the Board has submitted no proof that such improper allocation of interpreter services has occurred in the elections covered by City Defendants’ Interpreter Program thus far. Moreover, the mere specter of partisanship in the administration of the program, in and of itself, does not render the program an unconstitutional intrusion into the Board’s functions. As such, even if the Interpreter Program could be deemed to constitute a law for purposes of NY Constitution article II, §8, the decision in Clark supports a finding that the Interpreter Program does not regulate the Board or intrude into the Board’s authority or the Board’s functions of “registering voters,…distributing ballots to voters, or…receiving, recording or counting votes at elections” under NY Constitution article II, §8 (see Clark, 66 NY2d at 192; see also Matter of New York State Senate Republican Campaign Comm. v. Sugarman, 165 AD3d 1536, 1537-1538 [3d Dept 2018]). PREEMPTION “The preemption doctrine represents a fundamental limitation on home rule powers” and “embodies ‘the untrammeled primacy of the [l]egislature to act…with respect to matters of State concern’” (Albany Area Bldrs. Assn. v. Town of Guilderland, 74 NY2d 372, 377 [1989], quoting Wombat Realty Corp. v. State of New York, 41 NY2d 490, 497 [1977]). “A local law will be preempted either where there is a direct conflict with a state statute (conflict preemption) or where the legislature has indicated its intent to occupy the particular field (field preemption)” (Eric M. Berman, P.C. v. City of New York, 25 NY3d 684, 690 [2015]; see DJL Rest. Corp. v. City of New York, 96 NY2d 91, 95 [2001]). Here, there is no conflict preemption as no provision of the Election Law expressly governs the ability to provide interpreter services to voters.10 At oral argument, the Board specifically argued that Election Law§8-306 preempts the City Defendants from providing the interpreter services. This court disagrees and finds the plain language of section 8-306 cannot be read as doing so. As relevant here, section 8-306 (3) provides that, “Any voter who requires assistance to vote by reason of blindness, disability or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of the employer or officer or agent of the voter’s union. A voter entitled to assistance in voting who does not select a particular person may be assisted by two election inspectors not of the same political faith.” The first sentence of section 8-306 (3), which was added in 1991 (see L 1991, ch 154),11 incorporates, word for word, Voting Rights Act 52 USC §10508 [also referred to as section 208 of the Voting Rights Act]), a 1982 addition to the Voting Rights Act. While the language of 52 USC §10508 does not specifically mention interpreters, the United States Court of Appeals for the Fifth Circuit has held that a Texas statute that required that an interpreter selected by a voter to provide assistance be a registered voter of the county in which the voter needing assistance resided impermissibly narrowed the rights guaranteed by 52 USC §10508 (OCA Greater Houston v. Texas, 867 F3d at 614-615). In view of the origin of language allowing a voter to chose the person to assist him or her, and the plain meaning of this text, nothing in section 8-306 (3) can be read as limiting the provision of interpreter assistance solely to the Board’s inspectors or to interpreters hired by the Board. Nor does the fact that City Defendants make interpreters available through their program thwart or otherwise prevent a voter from seeking assistance from a “person of the voter’s choice” for purposes of section 8-306 (3). With respect to field preemption, the legislature may indicate its intent to occupy a field expressly or by implication (see DJL Rest. Corp., 96 NY2d at 95). “An implied intent to preempt may be found in a declaration of State policy by the State Legislature * * * or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area” (id. [internal quotation marks omitted]). “However, the fact that State and local laws touch upon the same area is insufficient to support a determination that the State law has preempted the entire field of regulation in a given area” (Jancyn Mfg. Corp. v. County of Suffolk, 71 NY2d 91, 97 [1987]). Moreover, “[s]tate statutes do not necessarily preempt local laws having only tangential impact on the State’s interests. Local laws of general application — which are aimed at legitimate concerns of a local government — will not be preempted if their enforcement only incidentally infringes on a preempted field” (DJL Rest. Corp., 96 NY2d at 97 [citations and internal quotation marks omitted]; see Matter of Arash Real Estate & Mgt. Co. v. New York City Dept. of Consumer Affairs, 148 AD3d 1137, 1139 [2d Dept 2017]; Patrolmen’s Benevolent Assn. of the City of N. Y., Inc. v. City of New York, 142 AD3d 53, 58 [1st Dept 2016], Iv dismissed 28 NY3d 978 [2016]). The Election Law contains no express legislative statement of an intent to preempt municipal action. NY Constitution article II, §8, however, states a broad policy that would preclude municipalities from regulating the Board or intrude into the Board’s authority or the Board’s functions of “registering voters,…distributing ballots to voters, or…receiving, recording or counting votes at elections.” Additionally, many broad provisions contained in the Election Law governing the conduct of elections require uniform statewide application and would preclude municipalities from passing inconsistent laws or regulations (see Castine v. Zurlo, 46 Misc 3d 995, 1001 [Sup Ct, Clinton County 2014]). Nevertheless, the provision of interpreter services, while undoubtedly central to the ability of LEP voters to vote, is only tangentially related to the Election Law provisions that govern the conduct of elections (Election Law article 8, title 3) and the Board’s core Election Law functions of registering voters, distributing ballots to voters, and receiving, recording or counting votes at elections (see DJL Rest. Corp., 96 NY2d at 97; Matter of Arash Real Estate & Mgt. Co., 148 AD3d at 1139). Further, while there are municipalities in other parts of the state that have LEP voters who would benefit from having interpreters, given the sheer number of LEP voters in the City who need language assistance (see e.g. New York City Charter §18 [a]; Matter of Toribio, 24 Misc 3d 1024, 1026-1028 [Sur Ct, New York County 2009]), the scope of the need for interpreter services is unique to the City, and supports this local initiative to address the issue. As noted above, the provision of interpreter services is also consonant with the core policy of the Election Law of encouraging the broadest possible voter participation (Election Law §3-102 [14]; Clark, 66 NY2d at 190). and, in Clark, the Court of Appeals emphasized that the effectuation of this policy is not limited solely to the State and County Boards of Election.12 Indeed, while the decision in Clark did not address preemption arguments, its holding that the executive department voter registration drive was not barred by constitutional separation of powers concerns or the requirements of NY Constitution article II, §8, supports a finding that field preemption does not bar the interpreter program here (see Clark, 66 NY2d at 190-193). Such a conclusion is also supported by the Appellate Division, First Department’s holding in McDonald v. New York City Campaign Fin. Bd. (117 AD3d 540 [1st Dept 2014]) that Election Law provisions governing campaign finance did not preempt the field and preclude enforcement of City campaign finance provisions that were not inconsistent with the requirements of the Election Law (id. at 541). Accordingly, this court concludes that the City Defendants interpreter program is not preempted by the Election Law. The court notes that the Board, in the amended complaint, alleges that the City Defendant’s Interpreter Program is also preempted by the federal Voting Rights Act. The Board, however, has not raised this Voting Rights Act argument in support of its own cross motion or in opposing the City Defendants’ motion, and has thus arguably waived its claim of preemption based on the federal Voting Rights Act. In any event, nothing in the Voting Rights Act, which contains provisions barring discrimination based on a voter being a language minority and provisions setting minimum requirements for providing election material in the language of certain language minorities, demonstrates an intent to bar or preempt the City Defendants’ program to provide assistance for additional languages (see Voting Rights Act 52 USC 10303 [f]; Voting Rights Act, 52 USC 10503).13 In conclusion, based on the record before the court, the City Defendants have demonstrated, prima facie, that the program is constitutional and that it is not preempted. As the Board has failed to demonstrate the existence of factual issues warranting denial of the City’s motion, and likewise failed to demonstrate its own prima facie entitlement to summary judgment in its favor, the City Defendants’ motion is granted to the extent indicated and the Board’s cross motion is denied. The court emphasizes that its determination of the motion and cross motion are based on the evidentiary record before the court. The court acknowledges the possibility of partisanship and potential for abuse in the administration of the Interpreter Program. However, to address such concerns, the Board’s inspectors certainly retain authority to take appropriate action in the event that the interpreters provided through the program engage in electioneering or other improper conduct. Finally, because the Board sought a declaration of its rights, entry of a declaratory judgment in favor of the City Defendants rather than the dismissal of the complaint is the appropriate remedy (see Garcia v. New York City Dept. of Health and Mental Hygiene, 31 NY3d 601, 621 n4 [2018]; 200 Genesee St. v. City of Utica, 6 NY3d 761, 762 [2006]). This constitutes the decision, order and judgment of the court.
