COMMENT: This ruling adds to the confusion about absentee ballots this year. This lawsuit changes some parts of a new law passed in 2021, while allowing other parts of the new law to stand and will be appealed, so is not the last word. It is very late to be changing rules when many have already submitted their absentee ballots. Allegra Dengler
https://www.timesunion.com/state/article/GOP-absentee-ballot-case-moves-forward-17525007.php
Supreme Court justice rules part of N.Y. absentee voting law is unconstitutional
State Democratic officials expect to appeal the ruling before Election Day. COVID-19 exemption remains in
Oct. 21, 2022 8:15 p.m.
BALLSTON SPA — A state Supreme Court justice issued a split ruling Friday that found New York's absentee ballot laws are partially unconstitutional, a decision that will hurl an element of disorder into the midterm election in which mail-in voting is already underway.
State Supreme Court Justice Dianne L. Freestone's decision stopped short of overturning a change in Election Law that allows someone to vote by absentee ballot if they fear contracting COVID-19, a measure that she highly criticized but said could not be undone at this time.
Her ruling on the lawsuit filed by Republican and Conservative party leaders was immediately challenged by Democratic officials who filed a notice of appeal on Friday evening. The case, which may be resolved by the state Court of Appeals, is expected to move quickly as Election Day is less than three weeks away.
Freestone's ruling struck down a 2021 state law around the "canvassing" of absentee ballots. For now, the ruling will reinstate some of the laws that were in effect prior to last year's changes, including allowing someone to vote in-person on Election Day to override any absentee ballot they may have submitted.
Republican officials contend that is an important provision because it enables a voter who learns something damning about a candidate before the election to change their vote.
The ruling also gives clearer ability for poll watchers, candidates and others to contest a ballot in the court, something that Republicans argued was curtailed under the 2021 law.
And the order, for now, instructs boards of election to "preserve" absentee ballots. That may mean boards of elections will not count absentee ballots until after Election Day or until a final court decision is made. The byproduct is the outcome of tight races may take a few weeks to resolve after Election Day, something that had been common under the former rules.
Freestone characterized the new rules that allow for anyone fearful of contracting COVID-19 to vote by an absentee ballot as illegitimate under state law. But she noted existing precedent on that part of Election Law prevents her from striking down the excuse to vote by mail.
That portion of Election Law may still be subject to rulings that are being appealed elsewhere in New York.
Freestone opinion noted that the COVID-19 excuse to vote by mail, which was passed into state law after voters rejected a no-excuse voting ballot proposition last year, presents an "Orwellian perpetual state of health emergency." She described the measure as "cloaked in the veneer of 'voter enfranchisement.'"
She said the Democrat's argument that the coronavirus poses a current health risk is "replete with alarmist statistics." The attorneys cited data from the U.S. Centers for Disease Control and Prevention that asserts several counties in New York are at a high risk of transmission of COVID-19. Freestone also rejected any concern over "collective phantom menaces of Monkey Pox and Polio."
The Democrat's argument, Freestone continued, is that the Republican concern about "constitutionality is the Shakespearean 'much ado about nothing' as these absentee voting expansions will sunset and expire at the end of 2022."
"This court is skeptical of such a pollyannaish notion," Freestone said. "There is nothing before this court to suggest that the continued overreach of the Legislature into the purview of the New York state constitution shall sunset or that this authority once taken shall be so returned."
Absentee voting using the excuse of fear of COVID-19, "unquestionably violates the 'spirit' of absentee voting," Freestone wrote.
Freestone's order comes after she heard oral arguments last week during an hours-long proceeding of discourse on who was trying to disenfranchise whom between the politically divided participants in the case.
"This decision helps uphold the integrity of the electoral process, a major victory for New York voters and the rule of law," state Conservative Party Chairman Gerard Kassar said in a statement.
"The (state) constitution has been on our side and we will continue to fight to uphold the will of the voters and to ensure honest elections in New York," state GOP Chairman Nick Langworthy said in a statement.
Democratic officials with the governor, attorney general, Board of Elections, state Senate and Assembly did not immediately release statements in response to the ruling.
Republican officials have argued that the state passed the measure allowing for someone to vote by absentee ballot if they fear COVID-19 to do an end-run around the electorate's overwhelming rejection last year of no-excuse mail-in voting. Democrats have said the two are not the same and shouldn't be used as an interchangeable expression of the will of the people.
Normally, voters must submit valid reasons for being unable to vote in-person, including pre-scheduled medical procedures or travel plans.
The GOP’s petition also contested the process to count ballots and ensure they have a chance to be “cured” if there are any constitutional issues.
Democrats argued that the GOP is challenging laws that have been on the books for months to undermine the integrity of the election in the final weeks of the campaign season.
"Halting the voting process, nearly one month before the general election, would negate the duly cast votes of thousands of voters, creating chaos and uncertainty that the statute itself aimed to combat," Lauren R. Eversley, an assistant attorney general, wrote in a brief.
Attorneys for the state also argued the Conservative and Republican interests had no legitimate evidence to support their claims.
"They have produced ghosts and goblins," New York State Board of Elections attorney Brian Quail said at the hearing on Oct. 12.
The GOP-led officials believe they submitted enough evidence to the court to prove they needed the judiciary to step in and solve an imperative constitutional issue at stake in this year's election.
The timing of the lawsuit was also triggered by a mailer the state Democratic Party sent out to their party's registered voters which included a pre-filled application to ask to vote absentee, checking off the excuse related to COVID-19, according to Kassar.
"When I saw the way these absentee ballot applications were coming in, I took the view that the Democratic Party was attempting to cheat," Kassar told the Times Union. "From my perspective, I immediately raised red flags with the GOP."
The case could have major consequences for the general election, which features contested races up and down the ballot, including for governor and congressional seats that could tilt the political balance in Washington, D.C.
Republican gubernatorial nominee U.S. Rep. Lee Zeldin voted against the certification of the 2020 presidential election because of what he asserted were unconstitutional court decisions usurping the rights of the state legislatures in setting Election Law. On his party's absentee ballot case before the court, he recently said he would accept the court's decision.
"Whatever the courts decide in this case," Zeldin said. "And that decision will be final."
State Democratic Party Chairman Jay Jacobs noted that Freestone served as the vice chair of the Saratoga County Republican Committee prior to her election to the bench in 2019. He said that they expected an adverse ruling but that they intend to appeal the decision.