GOP challenges no-excuse mail voting law

A legal challenge is already in the works for newly signed legislation that will create no-excuse absentee voting in New York state.

Assemblyman Andrew Goodell, R-Jamestown, and U.S. Rep. Nick Langworthy, R-23rd District and listed as a resident of Erie County, are among 20 plaintiffs in a lawsuit filed Wednesday in state Supreme Court in Albany County. They are asking the court to declare the vote-by-mail law void and to issue a permanent injunction prohibiting no-excuse mail voting ballots from being counted in the November election.

“Even if there were a difference between absentee voting and mail voting, (the) mail-voting law makes both universal,” the lawsuit states. “By its own terms, any ‘challenge to an absentee ballot may not be made on the basis that the voter should have applied for an early mail ballot.’ In other words, because any registered voter can apply for an ‘early mail ballot’ under the law, any registered voter can now also apply for an ‘absentee ballot’ and be immune to challenge for doing so. That outcome would fly in the face of the plain text of Article II, Section 2. Because the mail-voting law authorizes what the Constitution forbids, it is void as unconstitutional and must be enjoined.”

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.

Gov. Kathy Hochul signed the bill Wednesday morning, prompting the lawsuit to be filed.

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, sponsored the legislation 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.

“Voting is a fundamental right and the easier we make it to vote, the healthier our democracy will be,” Gianaris said Wednesday. “I am proud the governor signed these bills as we continue to build on our important work expanding access to the ballot box for all New Yorkers.”

The Republican lawsuit argues the state’s constitutional and electoral history shows mail voting has to be authorized by the state Constitution, which states ballots have to be cast in person, with constitutional amendments needed to allow mail votin for soldiers, travelers and the physically ill or disabled. Voters had a chance to change the state Constitution in 2021, but voted down an expansion of voting by mail to everyone. Both Goodell and Borrello questioned on the Assembly and Senate floor how early voting by mail proposed by Gianaris and Reyes is any different than no-excuse absentee ballots, a proposal that was rejected by state voters in a 2021 referendum vote.

“Although New Yorkers had voted for many expansions of mail voting in the past, they decided that this proposal went too far,.” the lawsuit states. “In doing so, they exercised their sovereign function. And if the Legislature respected the constitutional processes, that would have been the end of this story.”

In addition to constitutional concerns, the Republican lawsuit mentions additional costs for county boards of elections to provide postage paid return envelopes, labor and other costs to process, tabulate and cross-check mail-in ballots.

Gov. Kathy Hochul said the mail-in ballot law is needed because it’s too hard for some people to get to polling sites, particularly citing the example of a working single mother who is busy from the typical polling hours of 6 a.m. to 9 p.m. She also mentioned the threat of legal challenge during her remarks before signing the legislation on Wednesday.

“So, we know there’s going to be backlash, I can tell you right now, on everything we’re doing here today,” Hochul said. “This is New York, right? I’m sure people are lawyering up, right? Young students, it’s a growth business, suing the governor of New York, suing our legislature, suing the people who are trying to do right by the state. That’s part of it. But the backlash is part of history. … “So, if you don’t want to expand the right to vote, here’s where you fall. You can either be on the side of democracy or against democracy.”


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