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NY judge declares new absentee ballot law unconstitutional
By
Jon Campbell
and
Brigid Bergin
Published Oct 21, 2022
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BRYAN R. SMITH/AFP via Getty Images
By
Jon Campbell
and
Brigid Bergin
Published Oct 21, 2022
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New York’s process for inspecting absentee ballots was thrown into chaos Friday when a judge issued a ruling declaring several of the state’s recent voting reforms unconstitutional, siding with Republicans on a lawsuit the party brought in the waning weeks of the election season.
Supreme Court Justice Dianne Freestone, a Republican from Saratoga County, ruled the new process for “canvassing” — or ensuring valid absentee ballots are inspected and prepared for counting — prior to Election Day violates candidates’ rights in various ways, including by making it more difficult for the courts to intervene when there are questions about a ballot’s validity.
The ruling did not, however, invalidate hundreds of thousands of absentee ballots already in the hands of New York voters as Republicans asked the judge to do — at least not for now.
In her 28-page ruling, Freestone said she believes a law allowing anyone to vote absentee if they’re fearful of spreading an illness — a provision approved by the state Legislature in August 2020 and extended in January of this year — is also unconstitutional. But the judge concluded she was bound by prior court precedent that already allowed it to stand.
“The framers of the Constitution did not intend to grant (and did not grant) the Legislature carte blanche to enact legislation over absentee voting,” Freestone wrote.
Senate Democrats and Assembly Democrats immediately appealed the ruling, which could draw a stay that would temporarily block Freestone’s order from taking effect.
The framers of the Constitution did not intend to grant (and did not grant) the Legislature carte blanche to enact legislation over absentee voting.
Saratoga County Supreme Court Justice Dianne Freestone
State Republican Chairman Nick Langworthy, who was among several plaintiffs who filed the lawsuit, trumpeted the decision as a win for Republican efforts to quash Democrat-led election reforms.
“Just like their illegal Hochulmander and their non-citizen voting scheme, Democrats’ attempt to rig our elections was slapped down by the courts,” he said in a statement, taking personal credit for the aggressive court action. “When I took over as chairman of the New York GOP, I promised to usher in a new, fighting era that took on Democrats’ brazen lawlessness and this victory is another win for election integrity.”
For now, the ruling means local election officials will have to soon pause the inspection of absentee ballots, which were being processed on a rolling basis prior to Election Day for the first time this year. The Democrat-led state Legislature approved the new process in a 2021 law meant to expedite the state’s notoriously slow procedures for counting mail-in ballots.
It also means the more than 427,000 New York voters — including more than 187,000 in New York City — who have already requested and received their absentee ballots will still be able to cast their ballots for the Nov. 8 election, regardless of whether they elected to receive mail-in ballots due to fears of spreading illness. Currently, 108,000 New Yorkers have completed and returned their absentee ballots.
If the ruling stands, those ballots would be counted after Election Day, as the state had done previously.
But, with less than three weeks to go before Election Day, the absentee-voting issue will be decided by the appeals courts.
The state Appellate Division, Third Department, will soon weigh an appeal in a separate, Republican-sponsored case known as Cavalier v. Warren County Board of Elections, which seeks to have the spread-of-illness law invalidated. From there, it could be appealed to the Court of Appeals, the state’s top court.
The Cavalier case was part of the court precedent that Freestone said barred her from acting on the law.
Friday’s ruling is a result of a lawsuit filed by the state Republican and Conservative parties in late September. The parties argued New York’s recent absentee-voting reforms infringed on the rights of candidates and went beyond the scope of the Constitution. One of the plaintiffs is the Saratoga County Republican Committee, of which Freestone is a former vice chair.
Attorneys for Democrats and Republicans sparred over the fate of the laws in a pair of hearings in Saratoga County Supreme Court this month, including a four-hour session last Wednesday.
The Democratic side — along with an attorney for the New York Civil Liberties Union and good-government organization Common Cause, who unsuccessfully tried to intervene in the case — argued Republicans had waited too long to bring the lawsuit, accusing them of filing in the final weeks prior to Election Day as a way to sow chaos and cast doubt as voters head to the polls. The GOP could have brought the lawsuit before the state’s June and August primaries, when the now-invalidated canvassing laws were already in effect.
Perry Grossman, an attorney with the NYCLU, said state lawmakers made the conscious choice to extend the measure allowing anyone to vote absentee if they’re afraid of catching a disease. It’s set to expire at the end of 2022.
“(Voters) have been applying for absentee ballots on that basis for months and months and months,” Grossman told Freestone during Wednesday’s hearing. “To upend that now is to invite not just significant confusion and a suppression of turnout, but also to likely disenfranchise voters who … under the circumstances would not be able to vote otherwise.”
To upend that now is to invite not just significant confusion and a suppression of turnout, but also to likely disenfranchise voters who … under the circumstances would not be able to vote otherwise.
Perry Grossman, attorney, NYCLU
However, Freestone ultimately rejected the NYCLU’s motion to join the suit.
Republicans, on the other hand, argued the voting reforms were far too broad.
By allowing anyone afraid of catching an infectious disease to vote absentee, the state was effectively allowing anyone to vote by mail, GOP attorney John Ciampoli argued. Voters had just rejected a constitutional amendment in 2021 that would have allowed anyone to vote absentee for any reason, he noted.
The defeat of those ballot initiatives followed a well-funded and coordinated campaign by the state’s Republican and Conservative parties, the plaintiffs in this current lawsuit.
“(Fear of catching an illness) is not an illness,” Ciampoli said in court. “Not by any stretch of the imagination. That’s not a reason to get an absentee ballot, and that’s why (the law) is overly broad and vague.”
Ciampoli also argued against the state’s new ballot-canvassing procedures, arguing they effectively took away a necessary check and balance.
By canvassing the ballots prior to Election Day, Ciampioli argued it made it more difficult to challenge the eligibility of an absentee ballot in the courts before it’s removed from its envelope, which contains the voter’s name and signature and is key to proving whether the vote came from an eligible voter.
He also took issue with a measure that allows a vote to stand if the Democratic and Republican elections commissioners split on its validity — an argument Freestone found persuasive.
The law “effectively permits one commissioner to take control and override what is constitutionally required to be a bipartisan review process at the Boards of Election,” Freestone wrote.
For local elections officials, the ruling added a new layer of complexity to an already challenging time of year.
It’s extremely worrying to me that a massive change to election law — that had already covered two primaries this year — is being issued 18 days before the election.
Dustin Czarny, Democratic elections commissioner, Onondaga County
He said his office canvassed absentee ballots on Tuesdays and Fridays, but has held off on the ballots that were supposed to be canvassed the day of Freestone’s ruling.
“It’s important to note that Boards of Elections throughout the state have already canvassed ballots — thousands and thousands of ballots have already been canvassed under this law,” he said.
Tagged
new york
Politics
absentee ballots
Election 2022
Jon Campbell
Jon Campbell covers the New York State Capitol for WNYC and Gothamist. Prior to that, he covered the Capitol for more than a decade for the USA TODAY Network. He has twice earned the Walter T. Brown Memorial Award, an honor given annually by the Legislative Correspondents Association alumni for outstanding state government coverage. Jon grew up in the Buffalo area and graduated from the University at Albany. Got a tip? Email Jon at [email protected] or Signal at JonCampbellNY.90.
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Brigid Bergin
Brigid Bergin is an award-winning senior reporter on the People and Power desk. She is fiercely committed to telling stories that help people engage and support democracy. In 2022, she hosted a live, ten-week call-in politics show ahead of the midterm elections called The People's Guide to Power. Brigid's reporting in 2017 included some of the first coverage of a political newcomer now known as AOC. In 2016, she broke the news of a voter purge in Brooklyn just days before New York’s presidential primary, triggering city, state and federal investigations. Brigid also guest hosts The Brian Lehrer Show and All Of It. She graduated from the University at Albany and the CUNY Newmark School of Journalism. Got a tip? Email [email protected] or Signal 917-723-4719.
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Gothamist is funded by sponsors and member donations
Gothamist is funded by sponsors and member donations
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