Trump's top legal foe to be handed 'unprecedented' election power ahead of November: election attorney

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A new requirement in New York that will take effect this weekend is set to grant Democratic New York Attorney General Letitia James widespread power over the state’s election process, a New York election attorney said. 

"Nobody is really talking about it or what a big effect it's going to have," election attorney Joseph T. Burns, partner at the law firm Holtzman Vogel, told Fox News Digital in a phone interview this week. "But it's interesting because, look, there's a lot of bad stuff that happens in New York when it comes to the elections and everything else, but this strikes me as being particularly bad. And it's certainly quite a power grab by the attorney general as well."

Under the John R. Lewis Voting Rights Act of New York, which Gov. Kathy Hochul signed into law in 2022, a preclearance requirement in the law is set to take effect on Sept. 22. The new rule requires certain jurisdictions in the Empire State to request preclearance from the attorney general or a designated court to make election-related decisions, which range from changing the hours of early voting to culling deceased residents from a voter list, Burns said. 

Burns published an op-ed in the New York Post this week, warning that the new law hands James "unprecedented power over election processes in some of the most hotly contested congressional districts in the nation, including those on Long Island and in the Hudson Valley." The upcoming requirement has flown under the radar, Burns said, telling Fox Digital, "Nobody's talking about. It's pretty remarkable."

New York Attorney General Letitia James. (Michael M. Santiago/Getty Images/File)

"The new rule upends the system of constitutionally mandated, bipartisan election administration that has served New York’s voters ably for generations," Burns wrote in his op-ed, which was published on Sunday. "The law requires certain counties, cities, towns, villages and school districts to get the blessing of the AG or a designated court before making election-related or voting-related changes."

The new rule covers massive jurisdictions such as New York City and nine counties on Long Island, including America’s largest township of Hempstead, as well as other areas known as "covered entities" under the requirement. 

The jurisdictions are determined by a handful of factors, including arrest rates for residents of "protected classes" and whether a jurisdiction committed civil rights or voting rights violations in the last 25 years, Burns said, citing documents from James’ office last year that detailed the rules. 

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Burns, who has a background in Republican politics and election legal issues, told Fox Digital there are "four triggers" that label a jurisdiction a "covered entity."

(Aimee Dilger/SOPA Images/LightRocket via Getty Images/File)

"Any political subdivision which, within the previous 25 years, has become subject to a court order or government enforcement action based upon a finding of any violation of this title, the Federal Voting Rights Act, the 15th Amendment to the United States Constitution or a voting-related violation of the 14th Amendment to the United States Constitution," Burns said, reading from the 2023 document published by James’ office.

Burns gave an example of Erie County, which is considered a "covered entity" under the new rules, when the jurisdiction was hit with a court order involving the 14th Amendment about a decade ago.

"You think, ‘Wow, this sounds really sinister,’" he said of the 2014 court order. "‘They're probably doing something. They're disenfranchising a minority.’"

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"No, not at all. What happened was the county executive and the county legislature couldn't agree on a redistricting plan," Burns said of the case. "… Something like that would put a local government under preclearance."

New York Attorney General Letitia James sits in the courtroom during the fraud trial of former President Trump and his children. (Dave Sanders/Pool/Getty Images/File)

"It isn't just bad policy, because it undermines the bipartisan nature of the boards of elections. Which, again, they're not perfect, there's so many inefficiencies. But by and large, in this day and age where people are so concerned about election integrity, what's better than having both sides have a stake in the outcome, both sides wanting to and needing to make sure that elections are run smoothly and fairly? And now you have a partisan elected official stepping in to essentially have a veto power over our boards of elections," Burns said. 

Under New York’s Constitution, elections are run by bipartisan boards that equally represent the Republican and Democratic parties. 

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"One side watches the other, and both parties have a stake in ensuring that elections run smoothly — even in jurisdictions heavily dominated by one party or the other, like New York City. It’s not a perfect system, and it certainly has its inefficiencies. But it successfully preserves voter confidence," Burns wrote in his op-ed. 

"The preclearance rules of the state VRA, however, undermine this constitutionally mandated system of bipartisan election administration," he added. 

The New York State Capitol. (Thomas A. Ferrara/Newsday RM via Getty Images/File)

Burns said it's possible the new rule, which will go into effect roughly 40 days before the presidential election, could cause some hiccups at the polls this year.

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"It's certainly possible. I mean, what's going to happen if, God forbid, an early voting site or an Election Day poll site… and a pipe breaks and it floods and it's unusable, or there's a fire in the facility and it burns down. They got to move it," he said.

Local commissioners would then choose a new poll site before filing an application with the AG’s office. Burns said he’s not arguing that the AG’s office wouldn’t swiftly approve the application, but rather it adds additional layers of paperwork and clearance to run an election.

"New Yorkers of all political parties and persuasions want elections to be run fairly, honestly and efficiently — and the state’s system of bipartisan election administration already serves voters well," Burns wrote in his op-ed. 

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"Our elections — and the public’s faith in them — will not be improved by the AG’s meddling."

Fox News Digital reached out to James’ office regarding the upcoming requirement and Burns’ concerns in the op-ed but did not receive a response prior to publication.