New York’s Top Court Upholds Pro-Voting Absentee Ballot Law
The New York Court of Appeals, the state’s highest court, upheld a state law that will streamline the way election officials count absentee ballots.
The appeal focused on a provision of the law that allows absentee ballots to be counted when there is a split over its validity among county election officials, giving the benefit of doubt to voters. In a win for voters, the court found that the provision did not violate the constitutional principles of separation of powers and judicial review.
“Today’s Court of Appeals decision marks another decisive win for New York voters,” said New York Senate Deputy Leader Michael Gianaris (D). “I remain committed to ensuring all eligible voters can be confident their vote will be counted. As Election Day approaches, we can now put behind us the latest Republican attempt to infringe on these inalienable rights and focus on helping New Yorkers.”
Signed into law in 2021, Assembly Bill 7931 was enacted to “expedite the counting of mail-in votes” and “reduce delays in reaching election results.” The law allows election officials to review mail-in ballots on a rolling basis and requires voters who requested a mail-in ballot but decided to vote in person to use a provisional ballot. It also prevents legal challenges to absentee ballots that have been cast.
New York Republicans filed a lawsuit Aug. 31, 2023, alleging the law violated the state constitution and conflicted with existing election laws. They argued A.B. 7931 “not only protects fraudulent votes from the post-election scrutiny that they have traditionally received, but that it favors fraudulent ballots over genuine ballots cast in person.”
The trial court mostly upheld the law, striking down one provision that required a board of canvassers to “cast and canvass” a ballot if the board was split on its validity. Eliminating judicial review of those ballots, the court said, is unconstitutional.
An appeals court overturned that ruling, allowing the full law to go into effect. Campaigns can still contest the validity of those ballots once they have been canvassed.
On Aug. 27, 2024, Republicans appealed to the state’s highest court.
In 2020, New York counties did not start counting absentee ballots until seven days after Election Day, and did not finish until weeks later. A.B. 7931 is expected to speed up the process this year.
Last update, Aug. 28
On Tuesday, attorneys for the Republican plaintiffs appealed the case to the New York Court of Appeals, the state’s highest court.
Original post, Aug. 23
A New York appellate court upheld part of a state law aimed at streamlining the process of counting absentee ballots, reversing a lower court ruling that struck down part of the legislation.
In its decision Friday, the court sided with the state and upheld the law in full, including a previously struck-down provision about how canvassers examine ballots. The 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.”
The court ruled that the provision aimed at preventing judicial challenges to timely received ballots isn’t unconstitutional.
“In our view,” the opinion said, “the legislative decision to preclude judicial challenges to timely-received, sealed ballots duly issued to qualified, registered voters found to be authentic by at least one election official … does not unconstitutionally intrude upon the judiciary’s powers.”
The decision stems from a lawsuit — filed by the New York Republican Party and other conservative plaintiffs — alleging the law is unconstitutional. Oral argument was held on Aug. 12.
The state said that 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 using a provisional ballot. It also prevents legal challenges to absentee ballots that have been cast.
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.
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 asked 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 that 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.”