Can the New York Early Mail Voter Act Survive Its Constitutional Challenge?
All New York voters can now vote by mail, thanks to the governor signing into law the New York Early Mail Voter Act in September 2023. The bill’s passage in June was a surprise; for years, both legislators and lawyers have claimed that mail-in voting required amending the New York Constitution.
Since 2020, mail-in voting has become a charged partisan issue. Predictably, a group of Republicans, led by U.S. Rep. Elise Stefanik (R-N.Y.), filed a constitutional challenge immediately after the bill was signed. The defendants in the case are led by Gov. Kathy Hochul (D), and joined by a group of Democratic “intervenors,” including U.S. Sen. Kirsten Gillibrand (D-N.Y.).
Such a challenge is a long process, but trying to pass a constitutional amendment would take even longer (it requires passage by the Legislature in two successive years and then by the voters).
The new law has now made it through the first two levels of its legal challenge as it was ruled constitutional by a trial court in February, and that decision was upheld by the appellate court in May. After another appeal from the GOP plaintiffs, the case will now go before the Court of Appeals (the state’s highest court), where the justices will hear oral argument at the end of July.
If the law is to survive, the court must accept a radical break from over a hundred years of tradition, and uphold a new reading of the New York Constitution. I’ll examine why it made sense politically to introduce the bill in 2023, and explain the key issues in the court case.
The Political Background
As early as 2009, New York Democrats introduced a constitutional amendment to enable “no-excuse absentee voting”; it finally became a ballot proposition in 2021, but failed after Republicans successfully organized the opposition. Supporters of mail-in voting feared they would have to restart the long, risky amendment process.
Then, in 2022, mail-in voting laws in both Massachusetts and Pennsylvania survived constitutional challenges, although their constitutions have language similar to New York’s constitution. The decisions in these cases helped provide a road map for New York to pass and subsequently defend a similar law.
However, it was feared that the conservative New York Court of Appeals would reject the conclusions of the courts in Massachusetts and Pennsylvania. Then, Chief Justice Janet DiFiore resigned, and in April 2023, after a long skirmish, Rowan Wilson, one of the three liberal justices, was confirmed to take her place. Wilson’s seat was assigned to former New York Solicitor General Caitlin Halligan.
Together, these two appointments made it more likely that a mail-in voting law would survive a legal challenge, and this could explain the rushed introduction of the Early Mail Voter Act, which passed in June 2023.
The Key Issues in the Constitutional Challenge
The court case turns on the interpretation of Article II, Section 2 (Absentee Voting) and Section 7 (Manner of Voting). Section 2 enables the Legislature to create special voting procedures for those unable to get to the polls on Election Day for a given list of reasons (including travel and illness). This seems straightforward, but there is more than one way to read the section.
If the court declares the Early Mail Voter Act unconstitutional, legislators must try again to amend Article II of the constitution.
The challengers present the traditional interpretation: “absentee voting” is equivalent to remote voting (any voting not in person at a polling place). Moreover, by invoking the principle expressio unius est exclusio alterius — Latin for “the expression of one thing is the exclusion of the other” — the Republican plaintiffs argue that only the voters listed are allowed to vote remotely.
The appellate court instead accepted the defendants’ interpretation: “absentee voting” is any voting done by those listed in Section 2, and the purpose of the section is to ensure that they can vote. Following the lead of Massachusetts and Pennsylvania, the court rejected the use of expressio unius, and agreed that the legislature could pass a law “expanding alternative voting methods to the entire electorate, as was done here. ”
The court even rejected the challengers’ compelling argument from legislative history, that “whenever the Legislature has sought to allow voting from afar for certain persons – first soldiers, then commercial travelers, then all travelers and the physically ill or disabled – it has first needed a constitutional amendment to confer upon it the power to authorize such voting.” The plaintiffs added that this “understanding was unbroken until last year.”
The court held that although this shows that New York’s legislators believed such amendments were necessary, it does not prove that they were actually needed.
The other important text is in Section 7, which states that voting may be done by ballot or other methods, as long as secrecy is preserved. This section was adopted in the 1890s to respond to the introduction of voting machines, and the challengers argued that because of this history, Section 7 only refers to methods used inside a polling place. Using its own historical analysis, the court held instead that “methods of voting” could in fact include mail-in ballots.
There is one more key ruling — probably the most important. The court adopted the overall principle that laws are presumed constitutional. This means that the challengers must show the law is unconstitutional “beyond a reasonable doubt.”
The Future of the Early Mail Voter Act
If the Court of Appeals accepts that the challengers bear a “heavy burden of proof,” and gives priority to the meaning of the constitution’s text rather than to historical practice, it is likely to uphold the lower court’s decision.
But if the court declares the Early Mail Voter Act unconstitutional, legislators must try again to amend Article II of the constitution.
Since the amendment to Section 2 (absentee voting) failed in 2021, it might make sense instead to amend Section 7 (method of voting), explicitly giving the Legislature the power to enact remote as well as in-person voting. Now that Republicans seem to realize that they can benefit from mail-in voting, there is a better chance that an amendment will pass, and that mail-in voting will be here to stay.
Deborah Franzblau was a mathematics professor at CUNY/College of Staten Island from 1996 to 2021. In April 2023, she and Jim Brennan, former member of the NY State Assembly wrote the article, ”Does Voting by Mail in New York Really Require a Constitutional Amendment?,” which analyzes the Massachusetts and Pennsylvania decisions.