https://gothamist.com/news/appeals-court-turns-away-gop-challenge-to-ny-absentee-ballot-laws
Appeals court turns away GOP challenge to NY absentee ballot laws
By Jon Campbell and Brigid Bergin
Published Nov 1, 2022
A state appeals court reversed a Republican-led challenge to New York’s absentee-voting laws, declining the party’s attempt to invalidate perhaps hundreds of thousands of mail-in ballots.
The Appellate Division, Third Department, on Tuesday unanimously upheld a law allowing anyone to vote absentee if they’re afraid of catching or spreading an infectious disease, such as COVID-19. The law is set to remain in place through 2022.
The COVID-era voting law “was enacted in 2020 and has been in effect for multiple general, primary and special elections but petitioners did not challenge the statute until nine months after the sunset clause was extended and after the mailing of absentee ballots had already begun,” the unanimous, 10-page decision reads. “In short, petitioners delayed too long in bringing this proceeding/action.”
In its decision, the five-judge, mid-level court also upheld a 2021 law that changed when absentee ballots are opened. The new law requires local election officials to inspect the ballots and prepare them for counting prior to Election Day. Republicans argued the ballots should be counted afterward, as had been done for decades prior.
In short, petitioners delayed too long in bringing this proceeding/action.
Ruling from NY Appellate Division, Third Department
The Appellate Division again sided with Democrats because, among other reasons, Republicans waited too long to file their lawsuit, which the state GOP and state Conservative Party did in late September. The court’s ruling overturned a prior decision by state Supreme Court Justice Dianne Freestone, who had sided with Republicans.
In a statement, state Attorney General Letitia James, a Democrat whose office represented the state in the case, said she was "happy with the decision to keep these commonsense election integrity initiatives in place."
Because the decision was unanimous, Republicans would likely have to seek permission from the Court of Appeals – the state’s top court – in order to appeal. In any event, time is running short: Election Day is in one week, and more and more absentee ballots are being canvassed each day.
The state Republican Party hasn't decided whether to try to appeal yet, according to a spokesperson.
"We are still reviewing the decision and will make a determination about action at the appropriate time but we maintain that the lower court was correct in ruling the law unconstitutional," spokesperson Jessica Proud said in a statement Wednesday.
Democrats and voting-rights advocates, including the New York Civil Liberties Union and Common Cause/NY, had accused Republicans of trying to sow chaos ahead of the Nov. 8 general election by casting doubt on the absentee ballot process.
As of Monday, more than 500,000 people had requested and received an absentee ballot in New York, according to the state Board of Elections. While the deadline to apply online for an absentee ballot has passed, a voter can still apply for an absentee ballot in person at a local BOE office through Monday, Nov. 7.
But Republicans argued that they were trying to protect their candidates’ rights. By changing when absentee ballots are opened, the party argued it restricted their ability to challenge specific ballots in court.
The Appellate Division, however, wasn’t having it. By overturning the rules in the middle of an election, it would have treated those absentee voters whose ballots were already counted differently from those whose ballot had yet to be counted.
“Such disparate treatment cannot be countenanced,” the judges wrote.
Justices John Egan, Michael Lynch, Sharon Aarons, Stan Pritzker and Lisa Fisher all concurred with the decision.
In a statement, state Democratic Chairman Jay Jacobs chastised Republicans for trying to "disenfranchise voters and undermine our elections."
"We applaud this decision, and as Democrats, we remain steadfast in defending against any efforts to subvert free and fair elections, and we will make sure every single voter's voice is heard this year and every year," Jacobs said.
This story has been updated with comments from New York Attorney General's Office, and the state Republican and Democratic parties.