My Testimony to the NYS Senate Elections Committee Hearing on BOE Reform 9/21/21

(Below is my written testimony as submitted to the NYS Elections Committee Hearing on BOE Reform in Albany, NY on September 21, 2021.  I present this to the public in an effort to further educate on elections matters as well as being transparent. The above video is the actual panel for testimony which is more question and answer from the Senators.)

My name is Dustin M. Czarny and I am the Democratic Caucus Chair of the New York State Elections Commissioner Association.  I have also served as Onondaga County’s Democratic Elections Commissioner since 2013. Previously I spent 4 years as Legislative Chair for the NYSECA.  Before becoming Commissioner I had an extensive portfolio of work with the Onondaga County Democratic Committee and local campaigns.  I would like to thank Senator Myrie and the NY Senate Elections Committee for the opportunity to once again provide testimony on this important subject.

 Throughout my entire political life I have worked on making it easier for citizens to vote.  This quickly led to my interest in the cause of Election Reform.  Throughout my time as a volunteer campaign worker, I had been frustrated at New York’s low turnout rates and the lack of voting opportunities.  I was surprised that a liberal state such as New York was consistently behind major election reforms.  Early Voting, No Fault Absentees, Automatic, Online, and Same-day registration were tools that other states, even deep red states like Texas, had that New York didn’t.  

 I fought for election reform before becoming Commissioner and I fight for it every day since.  As I have navigated the New York electoral system I have become frustrated with the slow legislative process.  The glacial pace of New York election reform turned into a flood in 2019 with the unified Democratic legislature.  Long needed reforms such as Early Voting , June Primary, portable registration, electronic poll books, uniform primary polling hours, state-wide re-canvass provisions of close elections, increased election district sizes, and online & automatic voter registration have been passed by this body.  In addition, the voter will have a choice of adding no-fault absentee and Same-day registration to our arsenal of improvements this November.

 It is an exciting time to be both an Elections Commissioner as well as reformer.  That being said the pace of these reforms have not always been matched with funds and time to adjust.  Many of these changes have been implemented during the height of the COVID-19 pandemic straining the meager funding and even the health of Elections Commissioners.  In my testimony today I hope to provide avenues that we can enhance and strengthen our Board of Elections to meet the needs of New Yorkers today and into the future.

 Bipartisan Boards of Elections are our best tools to serve New York Voters

 It is my strong belief that the bi-partisan model for New York Election Administration remains the best model for serving the voters of New York.  The county party nominated and legislature approved Elections Commissioners from both of the major parties gives a uniquely local perspective to Election Administration.  In its best practice the commissioners work as a team identifying needs of the local community.  They work with the legislature to adequately fund the elections board with as little influence as possible.  They work with community non-profits and government agencies to identify polling places. They work with their local parties to recruit and staff those polling places.

In the age of hyper partisanship, the New York Board Bi-Partisan electoral system has served as a bulwark against the vitriol we have seen in other places in the country. Having representatives of the major party intricately involved in every election aspect provides a checks and balance to assuring election law is followed.  It also provides assurances to partisans that one party or ideology is not dominating or tainting the process.  Election results are accepted and outcomes verified.  

 That does not mean that our system works perfectly nor does it always reach our highest ideals.  The Boards of Elections are subject to the partisanship we see at local governments.  Often County legislatures try to intercede in election administration by stripping budgets or even threatening nominations of individual Commissioners they disagree with.  County Executives that cannot control the offices hiring treat Boards of Elections as bastard step-children with minimal funding allocations.  Commissioners themselves often can disagree, especially where there is no legislative formula to reach a conclusion, on our most partisan matters.  

 The solutions though are not to scrap the entire system.  Some advocates offer the solution would be to put non-partisan administrators into our jobs.  I contend that this would create more problems while not dealing with the structural issues that causes failures now.  Single administrators would have to be appointed and serve at the pleasure of local governments.  In other states local elected leaders form hiring panels.  This would allow partisans to gain control over local boards through the hiring, and firing process.  In a deeply diverse state like New York, where upstate counties are dominated by Republican elected officials and downstate counties dominated by Democrats we could see vastly different electoral philosophies enacted creating confusion and tension.  Our solutions must not create more problems than they hope to fix.

 The differences in Upstate and New York City Boards

 It is important to note that not all of electoral system in New York is the same.  In fact, the structure of the New York City Board of Elections is vastly different than the rest of New York State.   Throughout most of New York State, the Board of Elections is run by the two Elections Commissioners.  These Elections Commissioners are usually full time county employees that run the day to day business in the office.  Each side is afforded an equal amount of staffing and the individual commissioner has hiring power for their side, though it usually takes two commissioners to agree to fire an employee for cause.  This gives the commissioners authority and responsibility over the day to day functions of the office.  

 In New York City the 5 counties are fused together into one agency.  The Elections Commissioners form a ten person panel that meets on a monthly basis.  The Commissioners themselves are not tasked with the day to day running of the office. They hire an Executive Director and Deputy executive Director from either party.  Since the individual sides do not have hiring authority over their side and the two top positions are no co-equal in status this can lead to deal making and a lack of oversight and authority.  

 New York City is part of my caucus of commissioners and as such the caucus has taken a position on structural reform suggested for New York City.  Furthermore, I am from upstate and never having been a citizen of New York City, I hesitate to weigh in on the many issues raised with New York City Board of Elections.  However as a personal note I find the suggestions offered by New York State Board of Elections Commissioner Douglas Kellner more in line with how the rest of New York State operates.  Having two full time Commissioners with equal power directly involved in the day to day operation of the Board of Elections is a model that generally works well.

 Lessons from NY 22

 Upstate New York Boards were the focus of the #NY22 Congressional Election.  The various twists and turns of the absentee ballot count was part of a national spotlight.  Certainly mistakes were made and the intensity of the national spotlight amplified these issues.  It was an Election Administrator’s nightmare and though Onondaga County was not part of #NY22, I was in the same media market.  In my opinion most of the issues such in this case can be summed up into three categories, the unprecedented use of absentee ballots, the staffing inequities of the 8 counties that made up #NY22, and the malfeasance of the Oneida County Board of Elections.

 The unprecedented use of absentees caused unforeseen issues in our electoral process. Before 2020, New York was almost exclusively an in-person voting state with absentee voting limited to an excuse-based system.  In a typical election, less than 3 percent of all ballots would be cast using this method.  In 2020 with a pandemic raging in unvaccinated society, counties saw a dramatic increase in their use overnight as COVID-19 became a valid excuse for all citizens.  My county saw an increase to 26% of our ballots cast in the 2020 General Election, and massive increase.  The County Boards were incredibly successful at delivering the absentee ballots to the voters and deserve praise for this massive effort.

However, the large influx of absentees created an unanticipated challenge.  In New York, absentees and affidavit ballots are not counted until after Election Day.  With a large increase in absentee ballots the number of races without assumed winners on Election Night rose dramatically.  Worsening matters was the fact that national political messaging created an absentee universe that was favored by one political party as Democrats took advantage of this election tool while Republicans shunned mail balloting for in person election-day voting.  This created a perverse incentive to challenge mail-in ballots in all close contests.  Our challenge system for absentees was antiquated and did not anticipate these once in a generation circumstances.  Many of the failures of county boards in #NY22 and even in my own board dealt with this circumstance.

 It is also important to note that many of the Boards of Elections involved in #NY22 are smaller boards with limited staff.  These “micro-boards” often only consisted of two Commissioners and two deputies. Sometimes the Commissioners were full time, sometimes part-time.  While there were some grants available to help temporarily increase staffing for the 2020 Election, much of those grants went to the inordinate cost increases with more mail balloting and budget cuts from the county levels in the middle of the pandemic.  A simple fact is many counties have not allowed County Board of Elections to increase staff to meet the needs of all the reforms we have seen over the last few years.  On top of that COVID-19 outbreaks limited staff in many boards during the time of the post-election canvass.  

 The most egregious issues in #NY22 were reserved to the Oneida County Board of Elections.  During the court process we learned that hundreds of affidavit ballots were improperly ruled on as the procedures put in place for universal portability of voter registration.  We also learned the structure they chose for challenges was inadequate and did not follow a chain of custody.  However the most troubling was the late revelation of the failure to register several thousand DMV voter registrations.  I can’t stress to you enough how horrendous this decision was. We may never know how many voters were turned away who properly registered and in a contest of less than 150 vote margin it is an inexcusable failure to do our most basic job.  These decisions resulted in the eventual replacement of these Commissioners.

 While many of the mistakes in #NY22 may not be repeated in non-pandemic years, it is important we learn from the shortcomings that were exploited.  Mandatory training, oversight of the State Board of Elections, and proper funding of county Board of Elections will solve some of these issues. Wholescale election reforms of the way we count absentees anticipating a more universal use of this election process will also go a long way towards not repeating these mistakes in the future.

 Future Legislation must not only provide resources but clear direction

 The New York State Legislature has taken many steps to help voters over the last few years.  These reforms are welcome by the Democratic Caucus of Legislators.  In most cases, the Boards of Elections have been successful in implementing these reforms. We have also done that in the middle of a pandemic with ever increasing fiscal frugality.  Where Boards of Elections have come up short is when funding for increase spending has not been provided and clearer direction not given by the legislature.

I have come to Albany yearly since 2014.  I have stressed the need for the State Government to take a more active role in funding Boards of Elections.  The New York State Legislature has responded and I want to thank you for your commitment to Democracy.   I must emphasize though that New York State cannot solely fund elections.  We need a commitment from our host counties to funding the building blocks of our Democracy.  Often the increase in funding from the New York State would be used to offset budget cuts at the local level.  New York State Election Law requires the counties to provide an adequate amount to run the Board of Elections.  Often these counties reject or ignore the recommendations of its Commissioners often for petty partisan reasons.  Standard staffing levels based on voter populations are desperately needed to continue to serve the voters.

 We also need clearer guidance so we can adequately make decisions right for our community. Currently there is no requirement for annual training for Elections Commissioners.  There is little in Election Law on transparency of data and commissioners disagree about what data is public and what is not.  We don’t even have a mission statement on what our main purpose is.  Many of us want to do everything we can to ensure the public’s right to vote but run into resistance from county lawmakers and even some Commissioners who believe our mission is to spend as little money as possible.  While one size fits all legislation is frowned upon we can craft legislation that gives guidance based on voter registration to ensure that citizens in each county are offered a basic level of service they are entitled to.

 The New York Legislature is already making changes in legislation that will help improve Board of Election functions.  The mandatory expansion of Early Voting sites and counting of absentee ballots before Election Day will eliminate many of the tensions we have seen throughout the last few years.  Once Constitutional Amendments for No-Fault Absentee and Same-Day Registration is enacted by the voters quickly coming up with enabling legislation will be important to giving Boards of elections time to implement those reforms.  We also need to start mandating the use of technology like Electronic Poll Books and Ballot-On-Demand printers that will make implementing current and future reforms easier.

 Funding and Empowering State Board of Elections is vital to a healthy electoral system

 One tool we can utilize to bring about equity throughout New York is the State Board of Elections. Often we are burdening the State Board with the responsibility of carrying out some of New York’s most vital functions.  In addition to Campaign Finance Enforcement, recording and now public finance, we are now asking them to handle online and automatic voter registration.  While strives towards properly funding the State Board, it is my opinion they don’t have the adequate funds to achieve the many missions we have saddled them with.  

 We also need to give the State Board of Elections more authority to discipline and regulate County Board of Elections.  The situation in Oneida County in #NY22 highlighted a loophole in our current system only the Governor can remove Elections Commissioners for cause yet the Governor’s office was unwilling to act.  Furthermore the Executive Branch is not intimately involved with county Boards of Elections and cannot adequately ascertain issues before they reach a calamitous level.  The NYSBOE already works with NYSECA on bi-annual conferences that can be the basis of training and certification for Elections Commissioners.  We must make it mandatory, compelling counties to send Commissioners to these training sessions.  We must also give the authority for removal and disciplinary actions to NYS Board of Elections and mandate they use it when warranted.

 Giving County Commissioners freedom and authority to put the voters first

 I believe it is important for local parties to be able to pick Commissioners that know their community can act in the best interest of the voters.  Commissioners, however, are under partisan attack often from their own County Legislatures.  This last year we have seen County Legislators try to block party nominees in Monroe and Chataqua County.  These delays were not due to the merits of the party nominee but the preference of another candidate the county legislature wanted.  We also routinely see salaries of Commissioners being threatened for going over budget or enacting pro-voter policies not favored by the County Legislature governing bodies.  I experienced this myself in the wake of the 2020 election.  Though that situation was resolved through massive public outcry, Election Commissioners should be protected from this partisan targeting so we can do our jobs.

 To properly shield Elections Commissioners from these types of abuses small changes in election Law could be enacted.  Four year terms will allow an Election Commissioner time to learn all of the cycles of our New York electoral landscape while not having to worry about running for re-election with every decision they make.  Commissioners should have their terms staggered so we would lessen the possibility of two brand new Commissioners starting at the same time. We have a full time political calendar now in New York; we need dedicated full time Commissioners with salaries competitive with other county department heads in their county.  Making these changes will attract Commissioners who want to put voters first and protect them while they do so.

 Board of Election reform Recommendations

 I urge the New York State Legislature to make the following reforms to Boards of Elections to help improve our electoral system, protect Election Administrators, and put voters first.

 1.)    Pass minimum staffing levels for County Board of Elections.  Voters in every county should be treated with minimum services by our Boards of Elections. Counties should provide minimum staffing levels based on voter population so the voters have a fully staffed Board of Elections able to implement the voter reforms the legislature passes.

2.)    Make annual training for Elections Commissioners mandatory and certified through New York State Board of Elections.  By making training mandatory we will ensure all Commissioners are up to date on the ever changing landscape of our electoral process as well as ensuring their counties pay for and send them to this training.

3.)    Give the State Board of Elections authority to remove and discipline non-compliant Commissioners.  Currently there is little penalty for ignoring deadlines and election law.  We need the NYSBOE to have the authority to discipline and remove non-compliant Commissioners to protect voters against incompetence or malice.

4.)    Mandate all elections Commissioners are Full Time employees with competitive salaries.  The New York Political Calendar is year round with election events in every part of the year. We need hand-on election Commissioners who can dedicate their time to running our most important building block of our Democracy, the county Board of Elections.  Salaries should be commensurate with the mean of other county department heads in their counties to attract the best candidates.

5.)    Mandate 4 year terms for Elections Commissioners with staggering terms.  Four-year terms will give Commissioners time to learn the jobs and the distance from re-election to make unpopular but correct judgements that may go against their own party.  Staggering the terms will decrease the possibility that two new commissioners will start together in the same office.  Commissioners in the party that receives the most votes for Governor would have their four year term start in January of the Presidential Election, opposite party Commissioners could start in January of a Governor Election.

6.)    Mandate for transparency for Boards of Elections. We should mandate that official Board of Elections meetings are subject to open meeting laws and must be properly noticed to the public.  Boards of Election decisions should be transparent and open to public scrutiny.  We also should be open to taking comments from the public to further the ultimate goal of having better elections.  Decisions that affect the public should be made in the light of day and Commissioners should have to explain their rezoning.

7.)    Mandate by 2024 the use of Electronic Poll Books on Election Day.  While almost all Boards of Elections use Electronic Poll Books for Early Voting many have been resistant to implementing them on Election Day.  To provide for counting of absentee ballots before Election Day and Same-Day Registration we need these tools at the polling places on Election Day.  Ultimately this will save hundreds of staff hours in voter history recording post-election and make implementation of Same-Day Registration and vote-center models easier.  Giving a date now will allow Boards to start the transition over the next few years.

8.)    Have a dedicated stream of capital funding to invest in technology to make voting easier in New York.  The key to making voting easier is to modernizing our fleet of voting machines, implementing electronic poll books, and investing in our Board of Election websites to give more accurate and vital information to voters.  We need a dedicated predictable source of funding to help counties transition from equipment that may be over 15 years old to modern equipment that saves time, is more accurate, and ultimately produce better results.  

9.)    Allow technology to help reduce human error in the ballot re-canvass process.  Last year, the Governor insisted on a statewide recanvas for close contests. While I was in favor of it in concept the resulting legislation is too broad and will drag some contests farther past Election Day without the possibility of changing the results. Instead of hand counting all races within .5% we should allow a separate scanner to scan ballots when the margin falls between .25% and .5% and only do a hand count for ultra-close contests under .25%.  This way we are focusing on the races that can change while giving some assurances for most close races.

10.) Mandate data transparency for all interested parties in New York elections.  The NYS legislature should empower the State Board of Elections to come up with regulations on which data held by Boards of Elections is public knowledge and how such data can be shared with interested parties. We should mandate scanned ballot images should be available to all interested parties post-election.  By mandating this transparency we can give assurance in election outcomes while requiring all counties to provide a basic level of service.

11.) Move to a state-wide registration vendor.  Currently in New York we allow each county to choose its own vendor for registering voters.   Each vendor must comply with NYSVOTER as the statewide list is the official registration record.  However it would behoove New York to have one vendor for all counties.  This would make implementing automatic voter registration,

online registration, same-day registration, and a host of other election reforms easier and more cost efficient.  

I believe by implementing these reforms, none of which require a constitutional amendment, we can see real and lasting results for New York voters as well as the Board of Elections. I am happy to work with the New York State legislature to craft legislation to meet these goals above and will gladly take any questions the committee may have.

Sincerely,

Dustin M. Czarny

Democratic Caucus Chair, NYS Elections Commissioner Association

Democratic Elections Commissioner, Onondaga County Board of Elections

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