New York’s mail-in voting expansion stays in place for now, but lawsuit lingers

The new state law in question allows any registered voter to get a mail-in ballot, regardless of their reason for wanting to vote absentee. Before the law was passed, voters needed to meet certain criteria to be eligible to vote absentee. But Republicans have sued the state, arguing that the law was passed unconstitutionally because it was not passed via a constitutional amendment, but rather via the state legislature.

It’s unclear whether the law will stand or be thrown out by November. The Republicans’ attempt to have the rollout of the law halted in the meantime has been denied, but they are appealing this decision, and the lawsuit continues to make its way through the legal process.

Immediately after Gov. Kathleen C. Hochul signed the “Early Mail Voter Act” into law on Sept. 20, Stefanik, along with other Republican and Conservative politicians and political organizations, sued Hochul and state Board of Elections officials, arguing that the law was passed unconstitutionally — through the state legislature instead of a constitutional amendment, as all previous expansions to mail voting had been.

On Dec. 26, state Supreme Court Justice Christina Ryba rejected the Republicans’ request to stall the implementation of the law while their case is being considered, but this decision was also immediately appealed by the GOP. So this portion of the case is now heading to the Court of Appeals.

The appeals court, the state’s highest, could maintain Ryba’s decision, keeping the law in place as the larger lawsuit carries on. Or the appeals court could overturn her decision and side with the Republicans, stopping the law from being implemented until the state courts make a decision on the larger lawsuit.

Stefanik and Republicans want a final decision before the key 2024 election and are attempting to keep the law from taking effect this year as the final decision over the constitutionality of the law is up in the air.

“The decision to dismiss our request for an injunction to halt the implementation of mass unregulated mail-in early voting is just another example of New York’s lawless and rampant corruption,” Stefanik, the House Republican Conference chair, said in a Dec. 28 statement. “If Democrats can’t win through a legal election, they cheat and that has never been more clear than right here in New York.”

The voting would not be unregulated, but still subject to state election laws.

Stefanik and the Republicans say this halt in the rollout is important for the 2024 election. This election carries national implications. Republicans currently hold a slim majority in the House, meaning they have more power to control the legislature’s agenda. With all House seats up for election in November, political parties are clamoring to gain or maintain power through this election.

Also, on Feb. 13, a special election in New York’s 3rd Congressional District will be held to fill the seat formerly held by Republican George Santos, who was expelled from Congress last month. Democrats are campaigning hard for their candidate, Tom Suozzi — who previously held the seat — in an attempt to try to flip the seat blue. Republican nominee Mazi Melesa Pilip is running to keep the seat red.

The attempted halt

Democrats have opposed the GOP’s attempted stalling of the implementation of the law, including the national Democratic Congressional Campaign Committee and Sen. Kirsten E. Gillibrand.

They filed a motion with the court in early October, saying Republicans failed to state a claim. New York state and the Hochul administration also filed a similar motion the next week. In late October, Republicans initially requested an extension to their time to respond to these motions, but three days after Santos’ expulsion on Dec. 1, they asked the court to make a decision on their request “as soon as possible,” citing a “change in circumstances” relevant to their request.

Republicans argued that they are likely to succeed in their lawsuit based on its merits. But Ryba said the new law has not been declared unconstitutional yet, so the balance of equities do not tip in their favor regarding a pause on its rollout. Ryba said stalling it at this time would “harm New York voters.”

Republicans claim “the mail-in voting law places them at a disadvantage as compared to other candidates.” They say they will be harmed because early mail voters will cast more ballots for Democrats than Republicans. Ryba called this an “insufficient” belief.

“Irreparable harm is injury that is neither remote nor speculative, but actual and imminent,” the judge wrote, citing case law. “While (Republicans) argue in conclusory fashion that early voters by mail will cast more votes for (Democrats) than (Republicans), this belief is insufficient to grant a preliminary injunction.”

Stefanik called the mail-in ballot law a “scheme” from Democrats to “cheat.”

“The New York Constitution is very clear, if you would like to request an absentee ballot, there is a safe and legal process; unregulated mass mail-in ballots are illegal,” Stefanik said in a statement.

“The Court did not consider the merits of the case and had to be forced to issue an opinion after we asked the Appellate Division to force Justice Ryba to issue an opinion,” New York GOP Chairman Ed Cox said in a Dec. 28 statement with Stefanik. “Our request for an injunction to halt implementation of the law was argued on Oct. 13 and she only issued her opinion at 11 p.m. on Dec. 26.”

He accused Ryba of being a partisan judge. Ryba was elected in 2015 on the Democratic Party line. While judges are supposed to be impartial, the practice of labeling them as partisan and biased in political cases has become a broad trend, especially as former President Donald Trump is involved in numerous court cases. His practice of attacking justices, which has led to him being subjected to a gag order, has become common throughout politics.

“Judges who decide cases based on politics and not the law are a disgrace to our state,” Cox said. “We are confident that when impartial judges hear our appeal they will agree with our position.”

Ballot background

Up until now, there have been only two reasons for a voter to be eligible for an absentee ballot in New York — they would need to be outside their county on the day of the election, or be unable to appear at a polling place because of illness or physical disability.

The law passed in September keeps those requirements, but also adds to them, essentially opening up absentee ballots to all voters so they don’t need to meet either of those two qualifications. This is also referred to as “no-excuse absentee voting.” It requires boards of elections to mail a ballot to every voter who requests one.

But the Albany Times-Union reports that Hochul and other Democrats argue that this is not no-excuse absentee ballot voting. They say it is simply allowing any voter to vote by mail early. Republicans say this is “semantics.”

Hochul said this is a way to make voting more accessible for people with busy lives. The lawsuit calls this law a “blatant violation” of the state constitution.

The lawsuit’s argument boils downs to: Because this law is not a change to the constitution, it is not valid.

The law signed in September was passed by the state legislature in June. This law applies to all elections — national, state, local and school — by amending the state election code in dozens of places where it says “absentee” to say “early mail.”

In 2021, a proposed constitutional amendment expanding mail-in voting was shot down by New York voters.

A constitutional amendment which would have deleted all requirements for absentee voting was proposed in 2019, even before the coronavirus pandemic prompted the state to expand mail-in voting. During the pandemic, the state added a third qualification for people concerned about contracting the virus at the polls.

This proposed amendment passed the state legislature in 2021 and went to a public referendum on the ballot of the November 2021 general election. Voters rejected this proposal 55% to 45%.

One of those “no” votes was cast by Stefanik herself. Republican leaders strongly opposed mail-in voting expansions, even with a constitutional amendment.

The lawsuit said voters who voted against the proposed 2021 amendment have “had their votes effectively nullified” by the law passed in September.

The lawsuit posits that mail-in absentee votes risk nullification if the lawsuit is successful, a product of the lawsuit itself.

Stefanik is in a strange place. She is opposing the main-in ballot expansion in lawsuits. But she is also preparing for the potential that it stays, and telling voters to cast votes via absentee ballot on her fundraising site “House GOP NY battleground fund.”

The lawsuit implies that this expansion of mail-in voting creates opportunities for voter fraud. Under the law, it says absentee ballots can be requested by a voter’s spouse, parent, child or a member of their household, but they don’t have to provide the address of the voter. It can be any address. Applications also require an electronic signature, with few requirements for witnesses to verify it was signed by the voter.

According to the lawsuit, this law will put “substantial new administrative (and financial) burdens” on election boards and personnel, which will be required to process more additional mail-in ballots than usual, submitted by voters who aren’t sick, disabled or out of the county on election day.

When a voter requests a mail-in ballot, they are sent an application by the board with a pre-paid postage envelope to mail it back in. Then, they are sent a ballot with another pre-paid postage envelope. Ballots must be delivered in person or by mail by election day. These costs would be “ultimately borne by the taxpayers,” according to the lawsuit.

The suit also argues the law will put burdens on candidates whose voter outreach plans are designed to encourage voters to cast their ballot in-person on Election Day under the traditional law. This mail-in system has more steps than in-person voting, and informing get-out-the-vote campaigns would be more expensive to run.