At issue is one sentence in state election law that was added when Democrats changed how absentee ballots are counted in 2021.
By Dan Clark,Capitol Bureau
Aug 15, 2024
A law on how absentee ballots are reviewed is now in the hands of a state appellate court.
John Carl D'Annibale/Times Union
ALBANY — A voting law that Republicans claim could lead to rampant voter fraud in New York is now in the hands of a state appellate court, which will decide if it should remain on the books or be struck down as unconstitutional.
At issue is one sentence in state Election Law that was added in 2021 when Democrats changed how absentee ballots are counted.
“If the central board of canvassers splits as to whether a ballot is valid, it shall prepare such ballot to be cast and canvassed pursuant to this subdivision,” that sentence reads.
But understanding what that actually means is easier said than done.
Before an absentee ballot is received by a local board of elections, at least two people are designated as the “central board of canvassers.” There can be more than two but the board has to be equally divided between Democrats and Republicans.
When an absentee ballot is ready to be counted, the board checks to see if the person who sent it is registered to vote in that election. If they’re not, the ballot is set aside.
If they are registered to vote, the central board then compares the signature provided on the envelope by the voter with what they have on file. If the board agrees that they match, that vote is set aside to be counted.
The case before an appellate court in Albany centers on what should happen if someone on the board believes the signatures don’t match.
That’s what the sentence at issue is about but there is no disagreement on what it means: that if a member of the board thinks the signatures match but another member disagrees, that vote is presumed to be valid and is counted.
The intention of that was twofold: to prevent an absentee voter's ballot from being erroneously thrown out and to expedite election results by avoiding conflicts over the validity of ballots that can sometimes drag out the final count for days or weeks.
Republicans — led by the state Republican Party — filed a lawsuit challenging that section of the law last year, arguing that it doesn’t comport with the state constitution.
They’ve also argued that the law, if allowed to stand, could open the door to fraud from individuals who either unlawfully vote by mail on behalf of others or die before the election.
They partially won their case at the trial court level, where a judge in Saratoga County agreed that the law doesn’t survive constitutional muster. But the state appealed that decision to the Appellate Division, Third Department in Albany, where oral arguments were held Thursday.
Adam Fusco, an attorney representing the Republican Party, focused his arguments against the law on two points: that the new section prevents judges from settling disputes involving the validity of an absentee ballot and that the state constitution doesn’t allow it.
“This isn’t about how people vote. This is about who votes,” Fusco said. “The tie shouldn’t go to the voter. The tie should go to the court.”
Because the new law requires the vote to be canvassed, or set aside for counting, if there’s a split over its validity, the ballot disappears into an anonymized stack.
That means, if someone on the board of canvassers feels strongly that the signatures don’t match, they can’t ask a judge to intervene. They wouldn’t be able to pick the ballot in dispute out from the stack.
“It is too broad of an authority for one commissioner to be able to escape judicial review,” Fusco said.
Sarah Rosenbluth, an assistant solicitor general who represented the state at Thursday's hearing, argued against that point.
The Legislature has wide-ranging powers, she said. That means the election laws it creates might lead to situations, including the rules for casting an absentee ballot, that can’t be challenged in court.
“Nothing in the (state) constitution affirmatively requires that the court have an opportunity to adjudicate every possible election dispute that may arise,” she said.
The law was meant to benefit voters, Rosenbluth argued, not the people who seek to challenge the ballots they've cast. If someone’s signature is slightly off from what’s on file for that voter, the law is meant to prevent a situation in which their vote isn’t counted.
That’s the same thing that happens when someone votes in person and their signature doesn’t match exactly, she said.
“In the in-person context, it’s the same presumption of validity and that’s been a rule for decades,” she said.
But Fusco’s case also centers on a section of the state constitution that requires equal party representation on boards of elections and when votes are counted.
The new law, he argued, violates that section because it gives either party the power to usurp the other over the validity of a ballot.
“For one commissioner to supplant another commissioner, there is no longer bipartisan representation because there is not bipartisan action,” he said.
That argument was flipped on its head by Justin Baxenberg, who represented the Democratic Congressional Campaign Committee during arguments Thursday. The DCCC was allowed to intervene in the case at the trial court level.
Baxenberg said the fact that both parties have the same power to supplant the other proves that the law complies with the bipartisan requirement.
“You have equal representation because both parties have the same number of representatives with the same powers,” he said. “The statute does not give Democrats the ability to make a decision that it prohibits Republicans from making.”
The appellate court is expected to issue a decision in the case in the coming weeks.
Capitol Bureau
Dan Clark is the author of the Capitol Confidential newsletter and covers New York government and policy for the Times Union. Clark has covered New York government, politics and policy for more than a decade. Before joining the Times Union in 2024, Clark was the managing editor of WMHT’s “New York NOW” and had stints at PolitiFact, the New York Law Journal and Capitol Tonight. You can reach him at Dan.Clark@timesunion.com.