The Constitutionality of the New York Early Mail Voter Act

Download PDF

By Richard Rifkin*

December 13, 2023

With the recent enactment of the “New York Early Mail Voter Act,” there are now two conflicting provisions of law setting forth different rules regarding the ability of voters to cast their vote by mail. New York will face a significant problem in conducting elections in 2024, unless the courts are able to reach a final decision early next year that resolves the question of which of the two contrary provisions of law will govern. Without resolution of this question, the primary elections will be held without certainty as to this important issue, placing the outcomes in legal jeopardy.

The Constitution

The New York State Constitution provides that voters must vote in person at their polling place unless they are either absent from their county of residence (or from New York City if a resident of the City) or “unable to appear . . . because of illness or a disability.”[1] Under this provision, voters may vote by mailing in absentee ballots only if they come within either of the two exceptions to the requirement that they vote in person.

The procedure for amending the New York State Constitution requires voter approval after the proposal has twice been passed by the Legislature in consecutive sessions. In an effort to expand voting by mail, the Legislature passed a proposed constitutional amendment in two consecutive sessions that would have repealed the existing restrictions. This proposal was placed on the ballot in the November 2021 general election. However, it was defeated by the voters at that election, thereby causing the provision containing the limitations on voting by mail to remain in the Constitution.

When the COVID-19 pandemic began and caused almost every citizen to reshape their lives, former Governor Andrew Cuomo, acting pursuant to a law giving him the authority to suspend statutes and local laws during a statewide disaster emergency,[2] interpreted the constitutional disability exception to cover situations in which a voter would have to choose between prioritizing their health and practicing their right to vote on account of the pandemic. However, when the COVID emergency expired, the suspension of the constitutional restrictions—which may or may not have been within the authority of the Governor—ended, and they again became applicable. Thus, voters were no longer permitted to submit absentee ballots by mail by citing the pandemic as the basis for a disability.

The New York Early Mail Voter Act

In the 2023 legislative session, a statutory provision was enacted that would effectively remove the constitutional limitations. Having been approved by Governor Kathy Hochul, the New York Early Mail Voter Act became part of New York’s statutory law on September 20, 2023, with an effective date of January 1, 2024.[3] Thus, it will be applicable for the first time in the 2024 primary elections, scheduled to be held on April 2.[4]

The question, of course, is whether this statutory provision of law can override a seemingly contrary constitutional provision. The sponsors of the legislation have explained why they believe that the statute is valid as follows.

Until 2019, voting in person required voters to go to the polls on Election Day. In January 2019, a new law was enacted authorizing what is called “early voting.” This law mandated that polls be open on certain days starting ten days prior to Election Day. It gave voters an option as to the day on which they could cast their in-person ballots. This is now the established procedure for elections.[5]

The New York Early Mail Voter Act permits a voter “to vote early by mail . . . in any election . . . in which the voter is eligible to vote.” Under the statute’s provisions, an application for an “early vote mail in ballot” must be submitted to the appropriate Board of Elections. If the Board finds the applicant eligible to vote, it sends a ballot to the applicant. The applicant must then vote and return the completed ballot so that it is received by the Board before the close of the polls on Election Day or, alternatively, be postmarked by that time.

Conflict Between Constitution and Statute

The sponsors of the 2023 legislation seem to argue that the constitutional restrictions on voting by mail were inserted at a time when all voters were required to vote in person on Election Day. They argue that the restrictions should apply only to voting on that day. The recently adopted statute provides that it covers the method of voting adopted in 2019. Therefore, its application is limited to voters who are voting under the early voting statute. The rules for early voting, they argue, can be different from those that apply to Election Day voting.

As a result, we now have constitutional limitations on the ability to vote by mail but statutory provisions that seem to remove these limitations. Consequently, there will be a question as to whether those votes cast by mail without an absentee exception for not voting in person will be counted. Without the courts determining before the election whether the statutory provisions conflict with the constitutional limitations, and are, therefore, invalid, boards of elections and voters will not know what to do. A court decision after the election could result in the rejection of mail-in votes, thereby risking chaos and the possibility of a change in the election results.

An action challenging the constitutionality of the new statute was brought within one day of the Governor’s approval of the bill.[6] We now need a final decision on the validity of the 2023 statute well in advance of the April 2, 2024, primary elections to allow those elections to proceed without the risk of uncertainty and, even worse, the possibility that mail-in votes will be rejected after having been cast pursuant to the statute.

The Government Law Center provides the nonpartisan legal research and analysis that help state and local governments serve their communities. Our role is to explain, not to advocate for a position or course of action.

Notes