UPDATE: On Friday, Oct. 28, just twenty four hours after the lawsuit was filed, the Republican commissioner in Albany County agreed to process and count absentee ballots as required by state law, pending any further rulings on the legality of Senate Bill 1027-A.
WASHINGTON, D.C. — On Thursday, Oct. 27, New York Gov. Kathy Hochul (D), Sen. Chuck Schumer (D-N.Y.), Rep. Paul Tonko (D-N.Y.), the New York State Democratic Committee and two Albany County voters filed a petition for a writ of mandamus (a court order compelling a party to take a certain action) against the Albany County Board of Elections and its Republican commissioner seeking to compel the county to process (meaning review and prepare) absentee ballots for counting on Oct. 28, as required by New York law. The petitioners allege that the defendants’ refusal to process absentee ballots contravenes New York law, which “requires that absentee ballots received and processed [on a rolling basis every four days] before early voting starts must be scanned into the counting machines on Friday, October 28,” the day before the first day of early voting begins. They further assert that the Republican Albany County commissioner is refusing to comply with her duties under state law, which mandates that both a Democratic and Republican county commissioner participate in the processing of absentee ballots. Additionally, the petitioners express concerns that the “[b]oard’s refusal to comply with the law is causing severe confusion and chaos.”
Notably, the law (Senate Bill 1027-A) upon which the petitioners’ claims rest, which requires the early processing and counting of absentee ballots among other provisions, was struck down by a state trial court on Oct. 21 after Republicans filed a lawsuit challenging the statute. However, this trial court order was stayed (meaning paused) by an intermediate appellate court on Oct. 25. This means that S.B. 1027-A is back in effect and county boards of elections must comply with the law’s absentee ballot processing and counting requirements.
The Democratic petitioners behind the suit filed today against Albany County note that, despite the stay (pause) of the trial court’s decision, the county commissioner is not complying with her duties to process and count absentee ballots. Ultimately, the petitioners ask the court to compel the Albany County Board of Elections and its commissioner to process and count absentee ballots in accordance with their legal obligations under New York law.
In a filing in the appeal of the Republican-backed lawsuit, a lawyer for the New York State Board of Elections stated that, despite the stay of the lower court’s order, “approximately eighteen county Republican commissioners had indicated explicitly they would not be resuming the statutory canvassing procedures (i.e. reviewing ballots every four days and scanning those that have been opened tomorrow) until this appeal is fully determined. Approximately seventeen other Republican county commissioners have not answered the inquiries of their Democratic counterparts and are presumed to not be willing to resume their statutory canvassing duties” as of the morning of Oct. 27.