Earlier this month, a Supreme Court Justice sitting in Saratoga County correctly invalidated a key part of the 2021 law that ended any role for the state judiciary in overseeing the canvassing of absentee ballots. This law not only required absentee ballots to be counted when local election commissioners disagreed on the validity of the ballot, but it prevented candidates when these “split” votes occurred from even going to court over the validity of the ballot. This new process was unfair, and it violated the provision of the state constitution that requires bipartisan control of local boards of elections. New York State has already filed its notice of appeal in this case, but the Appellate Division must uphold the trial court’s very sensible and reasonable decision.
Our state constitution guarantees that elections will be administered in a bipartisan manner. Both major parties are ensured representation at our county boards of elections. This is an important and necessary election integrity safeguard.
The absentee canvassing law was found to violate this mandate of Article II of the state constitution. Under this 2021 amendment to the state Election Law, absentee ballots are counted even when the commissioners of elections disagree on whether the ballot should be counted. As bad as that might be, what’s worse is that this change to the Election Law prevented candidates from even seeking a judicial review of those ballots. The law requires — even though the election commissioners might not agree — that the absentee ballot be counted, and the judiciary is completely excluded from this process.
Upending bipartisan control over the canvassing of absentee ballots and removing the independent judiciary from the absentee canvassing process weakens New York’s electoral system. The absentee canvassing process in place before the 2021 change served New York voters well for generations.
In recent years, New York has seen plenty of election-related scandals and mishaps. Many if not most of these problems would not have been unconverted if the changes made by the 2021 absentee canvassing law had been in place. In 2013, for instance, the Democratic Commissioner of the Dutchess County Board of Elections was forced to resign her position after pleading guilty to absentee ballot-related fraud.
More recently, a 2021 Republican primary election for a New York City Council seat on Staten Island was engulfed in an absentee ballot fraud scandal. No candidate or campaign staffer was ever charged with absentee ballot-related fraud, but the Staten Island District Attorney — a Democrat — convened a grand jury to investigate the fraud allegations. The grand jury report was a bombshell. It found a number of instances of irregularities in the primary election, including an instance of a voter signing an election document after the voter had died.
The Staten Island grand jury went on to make recommendations on how to improve New York State’s electoral system. Among these recommendations were proposals for additional absentee voting safeguards such as requiring absentee voters to provide proof of identification with their ballot and prohibiting campaign workers from handling absentee ballots or absentee ballot requests.
The 2021 change to New York’s absentee ballot canvassing process did not make our electoral system better. It did not enhance voter confidence in the process. New Yorkers’ right to vote is protected by the state constitution. For this right to have any meaning, New Yorkers must have confidence that their elections are fair, honest, and administered in a bipartisan manner, as is required by the state constitution. The decision to strike down the main provision of the new absentee canvassing process was correct; the Appellate Division must affirm this decision and preserve the integrity of our electoral system.
Joseph T. Burns is a Republican election lawyer who lives in Western New York and the former Deputy Director of Election Operations at the State Board of Elections. He filed an amicus curiae brief on behalf of the Republican Lawyers Club, a political action committee, in this case.