FINDINGS OF FACT CONCLUSIONS OF LAW Common Cause brings this action against the New York State Board of Elections, its Co-Executive Directors, and its Commissioners seeking declaratory and injunctive relief for alleged violations of the National Voter Registration Act and the fundamental right to vote contained in the Fourteenth Amendment. Common Cause challenges two of New York’s election practices. First, the State regularly removes voters from active status and places them on inactive status if it believes that the voter has moved. The names of these inactive voters, however, are not provided to poll workers at polling locations. Second, the State prohibits inactive voters from voting by regular ballots, and instead requires them to vote using affidavit ballots. In October 2019, the Court conducted a four-day bench trial on these claims. The Court concludes that the former practice violates the Equal Protection Clause because it burdens all New York voters but serves no legitimate state interest. The latter practice does not violate the Constitution, however, because it advances several legitimate interests. The Court also concludes that Common Cause has identified three violations of the National Voter Registration Act. The Court therefore ORDERS the Defendants to provide the names of inactive voters registered to vote in a particular election district to the poll workers of that election district. This Opinion and Order constitutes the Court’s findings of fact and conclusions of law for purposes of Federal Rules of Civil Procedure 52(a)(2) and 65. To the extent any statement labeled as a finding of fact is a conclusion of law it shall be deemed a conclusion of law, and vice versa. I. BACKGROUND A. New York’s Voter-Registration Process States regulate both state and federal elections. “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” U.S. CONST. art. I, §4. Though states enact vastly different rules governing elections, one thread is common: all states require voters to vote in the election district in which they reside. Our system of representative democracy is predicated on this rule; only those who reside in a geographic area should be able to choose its representatives. Trial Transcript (Tr.) at 311. The dispute in this case arises out of a persistent problem faced by states in achieving this goal: voters move, and they do so often. “[M]ore than 10 percent of Americans move every year.” Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833,1838 (2018) (citing Census Bureau data). In designing their voter-registration systems, states must account for this voter movement. But when many residents move, they do not update their voter registration. Indeed, “about 2.75 million people are said to be registered to vote in more than one State.” Id. If a voter moves and does not update her registration, she could, in theory, continue to vote at her original address even though she no longer lives there. Both federal and state laws thus require states to use proxies to identify voters who may have moved. Once identified, states often change these likely movers’ registration status and require them to take additional steps before casting a regular ballot again. The problem, however, is that those proxies can be overinclusive, capturing voters who have not moved. Both the federal government and states are wary of using too strong a medicine — if states design a system that is overly inclusive, they may disenfranchise voters who remain in the same location. New York has developed its own procedures to regulate this process. The details of the State’s approach are laid out in Section II.A. In short, New York performs this voter list maintenance by using several proxies to determine which voters have moved. It then renders those voters inactive and requires them to cast affidavit ballots (what other states call provisional ballots). B. Procedural History Common Cause claims that New York’s list-maintenance procedures violate both the fundamental right to vote, contained in the Equal Protection Clause, and the National Voter Registration Act (NVRA). On September 6, 2017, Common Cause filed suit against the New York State Board of Elections and various state officials, seeking both declaratory and injunctive relief. Dkt. No. 1. Two months later, New York moved to dismiss. Dkt. No. 36. On September 30, 2018, the Court granted the motion to dismiss in part and denied it in part. Dkt. No. 58. The Court’s Opinion made several key conclusions. First, the Court held that Common Cause had met its burden at the motion-to-dismiss stage to demonstrate standing. Second, the Court narrowed the scope of Common Cause’s statutory claim. It dismissed the facial statutory challenge, finding that New York’s procedures as written did not violate the NVRA. However, the Court did not dismiss Common Cause’s as-applied statutory challenge, finding that even though New York’s regime facially complied with the NVRA, the State could still violate the statute by not following its strictures in practice. The Court did not address Common Cause’s constitutional claim. The as-applied statutory challenge and constitutional challenge are thus the remaining claims in this case. The Court held a four-day bench trial on these two claims in October 2019. Following the bench trial, the parties submitted memoranda of law and proposed findings of fact. Dkt. Nos. 179-84. II. FINDINGS OF FACT The Court turns first to its findings of fact from the extensive trial record.1 The key findings of fact are as follows: (1) tens of thousands of New York voters are improperly registered to vote as inactive, even though they continue to reside at their address of registration; (2) this problem results from errors in two of New York’s proxies for voter movement, data from the United States Postal Service and a national registry; (3) affidavit balloting causes substantial delay, for inactive voters specifically and all New York voters generally; (4) the State erroneously rejects some affidavit ballots; (5) a supplemental list of inactive voters kept at polling locations would alleviate some of these problems; and (6) Common Cause diverted resources as a result of the New York laws at issue in this case. A. New York’s Election Apparatus The Court begins with some background regarding how New York administers elections. The New York State Board of Elections implements state-wide regulations and defines the state’s election policies. Plaintiff Reply Findings of Fact (FIF), Dkt. No. 183, at 23-24. Defendants Robert Brehm and Todd Valentine are the State Board’s Co-Executive Directors. Defendant Thomas Connolly is the State Board’s Director of Operations. The State Board delegates much of its authority to sixty-two County Boards of Election. Each county in New York has its own Board. The State Board supervises and supports these County Boards. Def. Ex. B., Connolly Decl., at 22. For example, the State Board sets the contours for how County Boards should process affidavit ballots, perform list maintenance, and run a poll site. Id.; Pl. Reply FIF at 24-25 (discussing guidance provided by the State Board to County Boards). And the State Board supports the County Boards by hosting conferences and providing resources. Pl. Reply FIF at 25. But the County Boards administer elections themselves. The County Boards therefore test and deploy voting equipment, organize training for poll workers, conduct early voting, prepare poll books, and manage voting locations on Election Day. Pl. Ex. 263, Ryan Dep., 19:18-20:19, 41:22-45:24. The County Boards employ more than sixty-thousand poll workers per election; New York City alone employs about 30,000 per election. Pl. Reply FIF at 21; Ryan Dep. at 39:17-40-20. The County Boards have substantial discretion in administering elections, and their policies are far from uniform. Each of New York’s counties are further divided into election districts, which are “the basic political subdivision for purposes of registration and voting.” N.Y. Elec. Law §4-100; Pl. Ex. 263, Ryan Dep., 22:25-26:2. New York has about 15,000 election districts. Pl. Reply FIF at 21. Election districts have poll sites, and a voter can vote only at the poll site associated with that voter’s residence. Id. B. New York’s List-Maintenance System All states require voters to register in some way. And as discussed above, all states have procedures to deal with potential mismatches between a voter’s actual address and the address of registration. New York residents must register to vote at least 25 days before an election. N. Y. Elec. Law §5-210. Once they register, they are listed as an active voter. Assuming they continue to satisfy various criteria not relevant here, and the State receives no information suggesting that the voter has moved, the voter will remain in active status. That means the voter will continue to be listed in the poll book kept at polling locations. See Pl. Reply FIF at 21 (defining a poll book as “a list of active voters for the election district with signature exemplars which the voter signs to receive a ballot.”). The County Boards regularly send voters several types of mail: Once a year, they send cards to all active voters, notifying them of their polling location and hours. N.Y. Elec. Law §4-117; Tr. 147:8-12,148:18-20 (Valentine); Connolly Decl. 27. The statute requires these cards to be sent as non-forwardable mail; if they are not delivered, the Postal Service returns the card and provides the County Board with any forwarding information. Id; Tr. 147:8-12; 150:2-5 (Valentine); Connolly Decl. 27. County Boards also notify voters if their assigned polling locations have changed. Tr. 147:13-16; Pl. Reply FIF at 26. And they notify “voter[s] that his or her affidavit ballot was counted.” Tr. 147:17-20 (Valentine); Ryan Dep. 145:17-146:18. Voters are moved to inactive status when a County Board receives information indicating that a voter may no longer be living at her address of registration. New York relies on five proxies, or triggering events, to move voters to inactive status. First, voters are marked inactive if any mail sent by a County Board to a voter is returned as undeliverable. Tr. 147:4-7 (Valentine). Second, a third-party vendor may match a voter-registration record to a record in the National Change of Address registry, thus indicating the voter has moved. Tr. 112:14-17 (Connolly); Pl. FIF at 16; Def. FIF at 13; Pl. Reply FIF at 25-26. Third, another state may inform New York election officials that a voter has moved. Tr .143:13-144:8. Fourth, one New York county may inform another New York county that a voter has moved. Id. Fifth, certain information from the Department of Motor Vehicles regarding a change in address can also suffice. Tr. 112:18-20. As soon as any of these triggering events occur, County Boards take two steps. They send the voter a confirmation notice, advising the voter that the Board thinks she has moved and asking her to confirm her current address. N.Y. Elec. Law §5-712; Tr. 112:21-25; Ryan Dep. 213:13-214:8; Def. Ex. 36 (sample confirmation notice from Schenectady County). The confirmation notice is forwardable and serves as a “double check” on whether the voter has moved. Tr. 113:1-14 (Connolly); Tr. 173:3-10 (Valentine); Pl. Reply FIF at 3-5. At the same time, the County Board moves the voter to inactive status. Tr. 113:15-25, 114:1-4; 132:20-22 (Connolly). New York law states that “When a voter is sent a confirmation notice pursuant to the provisions of this article, the voter’s name shall be placed in inactive status.” N.Y. Elec. Law §5-213. To be clear, voters are marked inactive before they have a chance to respond to the double check; a voter is marked inactive as soon as the confirmation notice is sent. Id.; Ryan Dep. 92:10-93:6. Each of the five triggering events — including a County Board receiving a single piece of returned mail from a voter — are thus by themselves sufficient to move a voter to inactive status. New York law requires the names of inactive voters to be omitted from the poll books that are issued by most County Boards and used by poll workers at poll sites on election days. N.Y. Elec. Law §5-213(2) (“The registration poll records of all such voters shall be removed from the poll ledgers and maintained at the offices of the board of elections in a file arranged alphabetically by election district.”); accord Tr. 132:20-133:1 (Connolly). Their names are instead kept only in the records of their County Board, and cannot appear in poll books, even if the County uses electronic books. N.Y. Elec. Law §5-213 (“If such board uses computer generated registration lists, the names of such voters shall not be placed on such lists at subsequent elections…but shall be kept as a computer record at the offices of such board.”); Pl. Reply FIF at 10; Brehm Decl. 3. Moreover, once a voter is placed on the inactive list, County Boards are no longer required to contact them by mail. Tr. 149:1-4,150:6-13 (Valentine). County Boards therefore stop sending them notices in the mail of election dates and the location of their polling place. Tr. 149:8-13; 150:11-13 (Valentine). Of about twelve-million eligible voters, about one million New Yorkers are on the inactive list. Tr. 122:5-7 (Connolly); 322:23-323:6 (Meredith); Pl. Reply FIF at 30. Voters can get off inactive status in a few ways. A voter can reply to the confirmation notice, indicating either that she continues to reside at the same address or that she has moved. Pl. Reply FIF at 5. A voter can also cast a valid affidavit ballot. Pl. Reply FIF at 3-4, 19; Ryan Dep. 177:18-178:22. If an inactive voter fails to vote in two successive federal general elections (a period of four years), the state cancels their voter registration. Ryan Dep. 94:3-18. C. Affidavit Ballots: The Theory Inactive voters can still vote-but not by regular ballot. Instead, they must cast an affidavit ballot, or what many states call a provisional ballot. This section summarizes how this affidavit-ballot process is supposed to work. 1. How Voters Cast Affidavit Ballots When a voter appears at a poll site, the poll worker must first ascertain that they are at the correct polling location. Tr. 155:2-4 (Valentine). Poll workers often start by searching the voter’s name in the poll book that they have in print. The poll book contains only the names of active voters. Tr. 150:22-151:3 (Valentine) (“the poll book…is the list of active registered voters.”). If the poll worker finds the voter on the list of active voters, that voter can cast a regular, electronic ballot. Pl. Reply FIF at 21-22. But a voter may not appear on the list of active voters for several reasons: she may not be registered at all, she may be inactive, or the poll worker may be unable to find her name. Ryan Dep. 89:3-14. If a voter is not listed in the active registry, poll workers cannot look up her registration and are “unable to ascertain the voter’s actual registration address.” Tr. 150:22-151:7 (Valentine). In other words, a poll worker has no way to know why that voter is not listed as active, or even whether the voter is registered to vote at all. Tr. 151:13-18 (Valentine). When a voter appears whose name does not appear in the poll book, “poll workers are required to ascertain whether the voter is at the correct polling place…the poll worker [must] consult a map, street finder (listing of street addresses that indicates the election district and polling place for each address range on the street) or other description of all of the polling places and election districts.” Connolly Decl. 53; Pl. Reply FIF at 27-30; see N.Y. Elec. Law §8-302(e). Poll workers may also contact the County Boards to obtain the voter’s correct polling location. Id. 54. And the poll worker must provide the voter with a notice-to-voter form, “so that they can decide whether to seek a court order or vote by affidavit ballot.” Tr. 155:5-10 (Valentine). These options are explained below. The notice must be presented “in a form prescribed by the New York State Board of Elections.” Def. FIF 89. In other words, even if a voter does not appear in the poll book, poll workers are supposed to offer them a choice between a court order and an affidavit ballot. Tr. 155:5-10 (Valentine); Ryan Dep. 48:8-50:13, 162:19-163:16. The state’s policy is that no voter should be turned away because she does not appear on the active list; they should be permitted to vote by affidavit or seek a court order. See Ryan Dep. 162:19-163:16; 174:3-14. The notice-to-voter form explains these two options. Pl. Ex. 172 at 84 (sample notice-to-voter form from Columbia County). If the voter chooses to proceed by court order, the poll worker informs the voter “where and when a Justice of the Supreme Court or a County Court Judge can be located.” Id. Election judges do not sit in polling locations; in some counties, they are in the offices of the County Board. Tr. 238:10-15 (Brehm). A court order allows a voter to cast a regular ballot on a voting machine. A court order is therefore the only way for an inactive voter to cast a regular ballot. N.Y. Elec. Law §8-302(3)(e); Tr. 132:20-133:4 (Connolly). However, voters rarely proceed by court order. Tr. 238:22-239:10 (Brehm), 409:17-19 (Mohr). And even voters who obtain a court order are sometimes required to vote by affidavit, even though the order entitles them to a regular ballot. Tr. 239:1-6 (Brehm); Tr. 409:17-20 (Mohr) (“As a practical matter, there has only been two court orders issued in the 26-plus years that I have been Election Commissioner [of Erie County], and both times [the voters have] been directed to vote an affidavit ballot.”). Inactive voters can also proceed by affidavit ballot. A voter who chooses this method fills out, by hand, (1) the ballot itself, which is identical to that cast by active voters, and (2) a one-page affidavit contained on the ballot envelope. Tr. 155:14-20; Connolly Decl. 57; Pl. Ex. 259 (sample completed affidavit). Voters then seal the ballot in the envelope and return it to a poll worker, who then places it into a secure location. Tr. 155:14-20; Ryan Dep. 54:21-55:14, 199:2-22. Inactive voters do not use the electronic voting machine. Pl. Reply Facts 14. Among other things, the one-page affidavit asks the voter for the following information: the voter’s personal information (such as name and date of birth), the voter’s party enrollment, the reason the poll worker was unable to provide a regular ballot, the voter’s voting history and information, and the voter’s political-party enrollment. See Pl. Ex. 259. It also asks the voter to “swear or affirm that” she is a United States citizen, has “lived in the county, city or village for at least 30 days before the election,” and meets all requirements to register to vote in New York. Id. The voter must sign and date the affidavit. The voter must also swear or affirm that “The above information is true, I understand that if it is not true, I can be convicted and fined up to $5,000 and/or jailed for up to four years.” Id. In most counties, the names of inactive voters are maintained in a list available only at the County Boards. Tr. 408:14-25 (Mohr). Two counties, however, do not follow this approach. Both Nassau and Columbia Counties choose to keep a supplemental list of inactive voters at polling sites. In these counties, when a poll worker does find a voter in the active registry, the worker checks the inactive list. 2. How the State Counts Affidavit Ballots Affidavit ballots are not opened or counted on Election Day. Instead, state officials evaluate them in the days that follow. Ryan Dep. 69:24-82:19. Every affidavit ballot is evaluated, but many are not counted. Id. at 60:22-61:15. The State may conclude that an affidavit ballot should not be counted for several reasons. An affidavit ballot envelope may not be counted if there are errors in its completion. Id. at 195:5-16. For example, a voter may attest that she wished to be registered as a member of a particular political party but then fail to state which party. Id. at 57:10-25. A voter may leave portions of the ballot blank. Id. at 55:18-57:25. Or a voter may fill out an instruction card instead of the envelope itself. Id. at 55:18-56:11. Moreover, affidavit ballots are counted only upon a determination that “the voter is eligible to vote in the election.” Tr. 68:5-20 (Martin). When evaluating a ballot, therefore, State officials look up a voter’s registration status. Id. There are several possibilities: First, they may determine that the voter was listed in the poll book all along and voted at her correct location. That voter should have been allowed to cast a regular ballot, but a poll worker may have incorrectly instructed her to vote by affidavit because that worker mistakenly overlooked the voter’s name in the registry, even though her name was listed there. This vote would be counted. Second, they may determine that the voter voted at her address of registration, but the State had improperly marked her as inactive. In other words, the voter was marked inactive even though she did not move. Tr. 69:17-25-70:8 (Martin). This vote would also be counted, and the voter would be moved back to the active list. Ryan Dep. 178:23-180:3. Third, they may discover that the voter did not vote at her place of registration and stated in her affidavit ballot that she has moved to a new residence. This voter’s affidavit ballot would be counted as a vote in her new election district and her voter registration would be updated with the new address. Ryan Dep. 177:18-178:22. Under a new “universal transfer” law, a voter who is registered “anywhere in New York can cast a valid affidavit for the poll site of their new residence anywhere in New York.” Connolly Decl. 63; Pl. Reply FIF at 19. Fourth, they may determine that the voter may have never been registered to vote, either because she never registered or because her registration was canceled. Id. This vote would not count, as an affidavit ballot cannot be used to register in the first instance. Fifth, in a primary election, they may determine that a voter is not registered as a member of the relevant political party. This vote would not count. New York State recently enacted a law that allows the State to count an affidavit ballot if the Board determines that the voter was eligible and that “the voter substantially complied” with election laws. Assembly Bill A1320A (2019-2020 Legislative Session), available at https://www.nysenate.gov//legislation/bills/2019/A1320. Once this process is complete, each voter who voted by affidavit is mailed a letter informing her whether her vote was counted and, if it was not, the reason why. Ryan Dep. 85:5-86:21. Voters can challenge an adverse determination in state court; if they succeed, the State updates the election tally to include their vote. Id. at 86:22-89:3. D. Affidavit Ballots: The Reality The reality, however, is quite different from the theory. In practice, tens of thousands of New York voters are improperly registered to vote as inactive, even though they continue to reside at their address of registration. And affidavit balloting causes substantial delay, in part because of poll-worker error and confusion, increasing voting times for inactive voters and all New York voters. 1. Tens of Thousands of Voters are Placed on the Inactive List Even Though They Have Not Moved Common Cause has proven, beyond a preponderance of the evidence, that thousands of New York voters are placed on the inactive list even though they have not moved. Examples from voters and statistics analyzed by a voter-theory expert compel this conclusion. And Common Cause has demonstrated the root of this problem: inaccurate data from the United States Postal Service and the National Change of Address registry. In short, the proxies that New York uses to determine voter movement are substantially overinclusive. They erroneously capture tens of thousands of residents who remain at their address of registration and thus lead the State to incorrectly move these voters to inactive status. a. Voter Examples Common Cause identified numerous voters who did not move but nonetheless were listed as inactive voters. Robert Holman stated that he has lived in the same home in Erie County since 1965. Pl. Ex. 262, Holman Dep., 11:20-12:19. He testified that he had voted in more than ten elections since 2000, and had no difficulty voting before 2016. Id. 20:12-25, 22:2-4. In 2016, he arrived at a polling location, waited in line, and then was unable to cast a regular ballot because his name was not listed in the active registry. Id. 27:10-19. The poll worker “d[id] [nothing] else to figure out why [he] [was not] in the poll book,” and Holman voted by affidavit. Id. 27:20-28:18. Ralph Mohr, one of two commissioners for the Erie County Board of Elections, testified that Holman had been listed as inactive because “an official postcard mailed by our office [was] returned by the United States Postal Service as not deliverable as addressed.” Def. Ex. D, Mohr Decl., 17. The State does not dispute that Holman never moved, and therefore he was incorrectly listed as inactive. Jacques Fages stated that he has resided in the same New York City apartment since 1980, and has voted in every federal election since. Pl. Ex. 191, Fages Decl.
6-7. When he went to vote in 2017, he found he was not listed in the active-voter registry. He therefore voted by affidavit ballot. Id. 9-14. Fages stated that he never received any mail from the Board regarding his complaint about being listed as inactive or whether his affidavit ballot was counted. Id. 19. Robert Brehm testified that Fages had been placed in inactive status because a mail-check card was returned as undeliverable. Brehm Decl. 55-57. The State does not dispute, however, that Fages never moved from his apartment. Id. Like Holman, therefore, Fages was incorrectly listed as inactive. Several other voters testified they had similar experiences. When Susan Stewart arrived at her polling location in 2018, she found that her name was not listed in the active registry. Pl. Ex. 202, Stewart Decl.,
