New York Appeals Court Will Review Republican Challenge to Absentee Voting Law
A court will hear arguments in a Republican-led challenge to a New York election law aimed at streamlining the process of counting absentee ballots.
Attorneys for the New York Republican Party and other conservative plaintiffs are expected to argue against provisions of the law at oral argument Thursday in state appellate court. The plaintiffs sued the state and Legislature last year.
The state says the purpose of the 2021 law “is to expedite the counting of mail-in votes” and “to reduce delays in reaching election results.” The legislation allows for the review of absentee ballots on a rolling basis and requires voters who request an absentee ballot but decide to vote in-person to vote using a provisional ballot. It also prevents legal challenges to absentee ballots that have already been cast.
The Trump campaign, RNC and right-wing legal groups have filed over a dozen anti-democracy lawsuits aimed at mail-in voting so far this cycle.
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This week’s hearing comes after Republicans challenged the law unsuccessfully in 2022. In the current case, a lower court mostly upheld the law in May, striking down a provision about how canvassers examine ballots. The state and New York Senate appealed.
The struck-down provision stipulates that if a board of canvassers is split on whether a ballot is valid, “it shall prepare such ballot to be cast and canvassed.”
In its decision, the lower court said the legislation exceeded its authority in passing this provision, because the New York Constitution requires a contested ballot to “be set aside subject to judicial review.”
But according to the state, the law doesn’t mean contested ballots are beyond judicial intervention, meaning a party can still take legal action over the ballot. Removing the 2021 provision, the state says, “leaves a gaping hole in the statute so that there is no longer a uniform answer to the question of what happens if the canvassers cannot agree.”
Plaintiffs allege the law is unconstitutional and are asking the appellate court to block its enforcement. They argue the law among many things “protects fraudulent votes from the post-election scrutiny that they have traditionally received,” and “favors fraudulent ballots over genuine ballots cast in person.”
They also allege the section of the law requiring provisional ballots for voters who requested absentee ballots but voted in person is misleading, because the provisional ballot “is certain to be invalidated and discarded.”
The state argues this provision is consistent with longstanding rules for contested in-person votes. “For in-person voting in polling places,” attorneys wrote, “if a poll watcher disputes a voter’s eligibility to vote, the voter is nevertheless allowed to vote if he/she signs an affidavit attesting to eligibility. That vote is accepted and counted, with no judicial review even if the poll watchers think the voter is lying.”
The presumption is in favor of counting the vote, the state said. “This has been accepted as a regular and presumptively constitutional practice for decades.”