New York Appellate Court Upholds Absentee Ballot Law, Restores Blocked Provision
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.”