Early voting by mail, a relatively late addition to the state legislative agenda, will soon be on its way to Gov. Kathy Hochul for her approval.

State legislators approved early voting by mail legislation near the end of the state legislative session, the Senate approving S.7394 by a 41-21 vote with Sen. George Borrello, R-Sunset Bay, voting against. The Assembly approved a companion bill (A.7362) by a 94-51 vote with Assemblymen Andrew Goodell, R-Jamestown, and Joe Giglio, R-Gowanda, voting against. If Hochul signs the bill it will take effect Jan. 1, 2024.

If approved by Hochul, New Yorkers would be able to request an early voting ballot from their local Board of Elections and return it before the close of polls on Election Day in order to be counted. Sen. Michael Gianaris, D-Astoria and Senate deputy majority leader, and Assemblywoman Karines Reyes, D-Queens, propose allowing applications for voting early by mail to be received by mail up to 10 days before election day, though applications received in person would be granted no later than the day before election day.

Both Goodell and Borrello questioned how early voting by mail is any different than no-excuse absentee ballots, a proposal that was rejected by state voters in a 2021 referendum vote and which Republicans say violates the state constitution. Under the early voting by mail legislation approved by the legislature absentee ballots that can’t be counted under absentee ballot procedures will be counted as early vote by mail ballots.

“So we have two systems,” Goodell said on the Assembly floor. “We have one where the voter submits an application and they have to give an excuse why they don’t want to vote in person. And that’s called an absentee ballot. We have a second system that is being proposed today where the voter submits an application and they don’t have to provide any explanation. There’s no excuse. They don’t have to give any excuse. And then the two process come back together, don’t they? In both cases the Board of Elections sends out the same paperwork. Identical envelopes. Identical ballots. And then in both cases presumably the voters fill them out and send them back. And they send them back in the identical process. … The only difference is one you have to provide an excuse and the other is no excuse. … I’m out of time, otherwise I wouldn’t be able to tell you the difference (between the two).

Section 20 of the legislation specifically amends Section 8-506 of the state Election Law to include references to challenges of early mail ballots and also states that a challenge to an early mail ballot may not be made on the basis that the voter should have applied for an absentee ballot, and a challenge to an absentee ballot may not be made on the basis that the voter should have applied for an early mail ballot. Another section specifically lists those serving overseas in the armed forces as eligible for an early mail ballot; those voters would typically have used an absentee ballot in the past. Such clauses are one reason Borrello asked Gianaris on the Senate floor if the early voting by mail proposal is the same thing as no-excuse absentee voting.

“Madam President. Senator Borrello is mistaken,” Gianaris said. “The referendum was relevant to the absentee ballot process. This bill relates to a form of early voting.”

After the ballot referendum was defeated in 2021, Republicans filed a legal challenge to absentee ballot applications sent out by Democrats that were pre-filled for voters, including a reason to use an absentee ballot listed as worry over COVID-19. sent out by Democrats One argument Republicans made in 2022 was to challenge those who are eligible to vote by absentee ballot after Democrats sent absentee ballot applications to an unknown number of Democrats with voter information pre-filled, including worry over COVID-19, as the reason to request absentee ballots.

Similar legislation took effect in 2022 in Massachusetts and Pennsylvania, with the Massachusetts bill challenged in court. The Massachusetts Supreme Court ruled in August that voting by mail didn’t violate the state’s constitution despite language saying there are only three reasons to use an absentee ballot — when a voter is going to be out of town for Election Day, has a disability, or has a religious-based conflict with Election Day.

“This is just really a work around on that bill that overwhelmingly failed here in New York state where the voters of New York said no, we’ll stick to the constitution and we’re going to say that only in certain circumstances we will allow someone to vote by mail — vote by absentee or whatever it might be” Borrello said. “This bill essentially ignores the will of the people of New York state, and I will be voting no and I encourage my colleagues to do the same.”

Early voting will apply not only to local municipal elections but to school board elections as well as library board election votes. The legislation also creates a personal online application system through the state Board of Elections that also includes a tracking system that would allow voters to log in to see the status of their early mail ballot.

“I may not sit on the election committee and I may not be a lawyer, but I sure as hell sit in this chamber as a clinical professional and hear people opine on medical procedures, conditions, you name it,” Reyes said after casting her vote in favor of her legislation. “The case law has been clear in saying this is actually within our constitutional power to do. I am happy to vote in the affirmative and I’m happy to be able to expand access to the ballot to so many New Yorkers because if our interest is ultimately to increase participation, this is one way that we do it.”