In New York, absentee balloting is a privilege and an exception to the normal rule of in-person voting. The state constitution grants the legislature limited authority to allow absentee voting in instances when a voter is away from their residence, ill or disabled.
Any expansion of those limited exceptions would require an amendment to the state constitution — something 55 percent of New York voters rejected in Nov. 2021. Nonetheless, New York lawmakers expanded absentee voting to anyone who cannot appear in-person “because there is a risk of contracting or spreading a disease…”
Now, voters from across the state of New York and a county party committee have sued to stop a state law that allows near universal access to absentee voting. The law allows voters to receive an absentee ballot if they fear a communicable disease, while the state constitution carefully limits absentee voting to voters who have an actual illness or disability as part of an overall insistence on in-person voting whenever possible.
This expansion, against the will of New York voters, is illegal and undermines the protections provided by the state constitution. It increases the possibility of illegal or invalid ballots and opens the door to the Legislature rewriting the true meaning and intent of the state constitution on this and other issues in the future.
The New York voters and the Schoharie County Republican Committee are represented by the Liberty Justice Center, a national nonprofit law firm with a track record of success on election-related lawsuits. The case was filed in Warren County against the New York State Board of Elections and county election officials in Warren, Broome, and Schoharie counties. The plaintiffs also filed an emergency motion seeking expedited relief before the fall election.
For over a century, New York’s state constitution (Article II, Section 2) has made a limited grant of authority to the Legislature to permit absentee voting in exceptional circumstances. One of those circumstances is when a voter is unable to personally appear at the polling place because of illness or physical disability. In 2020 and again in 2021, the Legislature adopted laws permitting absentee voting not only when a voter is actually ill, but also when a voter fears contracting COVID-19 or another communicable disease in the polling place. Voters recently rejected 2021 Proposition 4, which would have amended Section 2 to permit no-excuse absentee voting.
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