On April 29, the Appellate Division will hear oral arguments in a challenge to New York State’s new early mail voting law. Early mail voting is a misnomer; this new law enacts de facto no excuse absentee voting. This new law — regardless of what label it is given by the State Legislature — violates long standing election integrity safeguards contained in the state constitution. The trial court that heard this case upheld the early mail voting law; the Appellate Division must reverse this decision and invalidate this unconstitutional law.
Article II, Section 2 of the State Constitution gives the state legislature the power to allow absentee voting. This provision, however, only permits the State Legislature to allow absentee voting when voters have a valid excuse, such as being out of the county on Election Day, or being permanently disabled. The early mail voting law runs afoul of this election integrity provision of the state constitution.
In 2021, an effort to allow no excuse absentee voting was overwhelmingly rejected by the people of New York. After passing the State Legislature twice, an amendment to the State Constitution to allow for no excuse absentee voting was put to the voters on Election Day 2021. New Yorkers rejected this and two other amendments that would have weakened election integrity protections of the state constitution.
The opposition to no excuse absentee voting in 2021 was bipartisan. In line with the conventional wisdom, the amendment was easily defeated in the most Republican and conservative parts of the Empire State. Voters, however, in Democratic counties such as Albany, Monroe, Onondaga, Rockland and Erie counties voted against the amendment as well. Given that New York as a whole has more than twice as many enrolled Democrats as Republicans, it’s safe to assume that a large number of Democrats voted to defeat the no excuse absentee voting amendment.
It’s no surprise that the people of New York voted to keep the absentee ballot integrity safeguards in the state constitution. New York, after all, has seen more than its fair share of absentee ballot mischief in recent years. In 2013, the Democratic commissioner of the Dutchess County Board of Elections pled guilty to election-related absentee ballot fraud charges and was forced from office. Allegations of absentee ballot fraud in a 2021 New York City Council race in Staten Island lead the Staten Island District Attorney to convene a grand jury to investigate.
While no one was indicted for election-related criminal activity, the grand jury issued a report that called for increased safeguards for absentee voting. More recently, an election commissioner and local elected official in Rensselaer County pled guilty to absentee ballot-related fraud charges; they were both forced to resign their offices.
The issue being considered by the Appellate Division this month has been decided. The people of New York spoke and spoke loudly in 2021. Shouldn’t the voters’ decision be honored? And isn’t it undemocratic to simply ignore the decision made by the voters in a referendum in 2021?
Our State Constitution may only be amended after the people of New York, in a referendum, vote in favor of any proposed constitutional amendments. This is very different from the process for amending the United States Constitution. It is more democratic; voters get to have their say. Our state Court of Appeals, New York’s highest court, has even held that the State Constitution is the voice of the people.
For the State Constitution’s protection of the right to vote to have any meaning, the voters of New York must believe that the state’s electoral process is secure. Voters must have confidence that every legal vote is being counted. The right to vote is complemented by the State Constitution’s robust election integrity provisions, most notably the prohibition on no excuse absentee voting. The State Legislature’s attempt to flout this constitutional election integrity protection was wrong; the Appellate Division must reject it and strike down the no excuse absentee voting law.
Joe Burns is an attorney who previously worked for the NYS Board of Elections.