Let New York Vote for More Housing

The city’s Board of Elections is on the cusp of a decision that could substantially set back housing production and local democracy in New York. When they consider the question this week, they must reject the City Council’s attempt to prevent voters from approving or rejecting a series of pro-housing ballot questions this fall.

Virtually all the major candidates for mayor as well as the last two mayors agree that New York City needs more housing. Virtually every economist agrees as well. Moreover, they all agree that new housing will not be built until the city makes it legal to build more housing by passing rezonings that allow more density.

If there’s so much agreement, why hasn’t it happened yet? The answer lies in the dark, dank corners of local politics, institutions and people that are untouched by changing attitudes towards rezoning, where narrow interest groups and Not-In-My-Backyard (NIMBY) homeowners’ groups dominate. The mass public and the press pay little attention to the obscure politicians and activists competing in judicial elections, community boards and City Council primaries. As a result, self-dealing and discredited old ideas fester in these crevices of the political system, producing officials and decisions that block needed change.

There is no part of New York City politics that fits this description better than the New York City Board of Elections. Commissioners are chosen by party bosses — one Republican and one Democrat — in each of the city’s five boroughs. Civil service laws do not apply to the board; the appointments are the last major refuge of pure party patronage. Perhaps unsurprisingly, the BOE has often been corrupt, incompetent and full of unsavory characters. Former Mayor Michael Bloomberg called it  “worse than the gang that couldn’t shoot straight.”

So it should come as little surprise that now, on the cusp of critical measures to help New York produce more housing going to voters on the November ballot, the BOE is considering engaging in some crazy NIMBY nonsense. The Charter Revision Commission proposed several changes to the city’s charter designed to encourage new housing construction, for voters to decide on this fall. These changes would significantly weaken the City Council’s ability to block some land use changes and streamline the onerous approval process known as the Uniform Land Use Review Procedure. Unsurprisingly, Council members are unhappy with the proposals. The prerogative of individual members to veto projects in their districts — or, better yet, to extract juicy concessions from developers — is a major source of members’ clout.

So members of the City Council asked the BOE to rule that the ballot questions were badly worded and to exclude them from the ballot. The BOE is apparently seriously considering this end run around a democratic vote.  The deadline for the BOE’s decision is Thursday, Sept. 11.

This brazen gambit should fail — for two reasons. First, the ballot language is plenty clear. Second, the BOE has no power to reject proposed charter revisions. The law clearly states that the Charter Revision Commission “shall prescribe the form of the questions to be submitted.” As numerous courts have repeatedly held since the early 1920s, the BOE’s responsibility is “strictly ministerial,” meaning that the BOE may enforce only the specific requirements written in the Election Code, not make its own discretionary judgments about the desirability of a measure. More than 20 years ago, a state Supreme Court justice observed that no court has ever allowed a board of elections to reject a proposition “because they disagree with the wording.”

This assignment of responsibility makes sense. The Board of Elections is not made up of experts in linguistics or voter behavior. There’s no reason to think that state legislators wanted to give them the job of guessing whether a ballot measure is clearly written enough for voters to understand.

All of which means that any decision by the BOE to yank these proposals from the ballot will likely lose in court.

But it might be too late by that point. Depending on how long it takes and what a court is willing to order, a BOE rejection could still make it impossible to get the charter revision proposals on the ballot.

The BOE hasn’t decided yet. If public pressure ramps up maybe it will yet do the right thing and let city voters decide whether to change the land-use decisionmaking process.

Before the Board of Elections gets any closer to taking this terribly antidemocratic step, mayoral candidates Zohran Mamdani and Andrew Cuomo should speak out — and speak up for keeping the measures on the ballot. If not, their own ambitions to increase housing will be stymied by the muck that resides in these dank, dark corners of New York.