New York Republicans have a new early voting problem.
The state’s recently enacted early vote-by-mail law will remain on the books — at least for now — after a mid-level appeals court issued a decision on Thursday in a case brought by Rep. Elise Stefanik, who chairs the House Republican Conference and is New York’s highest-ranking congressional Republican, along with other elected officials and voters.
The ruling upheld a lower court decision that found that the new law is constitutional. The judges in the case also determined that the law could be implemented through legislation rather than a constitutional amendment as Stefanik and the other plaintiffs argue.
“The fact remains that, in its current form, the NY constitution contains no requirement — express or implied — mandating that voting occur in-person on Election Day,” justices from the Appellate Division Third Department said in their opinion.
The ruling comes as New York Republicans struggle to compete with Democrats in all forms of early voting. In the first real test of the new early vote-by-mail law in the state’s closely watched special election in the 3rd Congressional District in Queens and Long Island in February, a Gothamist analysis found that twice as many Democrats cast early mail ballots as Republicans did. Higher turnout among Democrats during early voting was a key factor in propelling Democrat Tom Suozzi to victory.
Stefanik filed the lawsuit in September in state Supreme Court in Albany on the same day that Gov. Kathy Hochul signed the early vote-by-mail bill into law. It allows any voter to request a mail ballot without selecting one of the prescribed excuses previously required by absentee ballots, such as being away from home, being sick or having a disability. A lower court ruled the law was constitutional in February, and Stefanik appealed the decision.
Stefanik said she plans to appeal Thursday’s ruling to the state’s highest court, the Court of Appeals.
“On behalf of all New Yorkers concerned with New York Democrats’ illegal and unconstitutional assault on election integrity in New York State, today’s ruling by the Appellate Division is shameful and unconstitutional,” Stefanik said in a statement. “The New York state constitution couldn’t be clearer: If you would like to alter the legal absentee ballot process, it must be decided on by the voters through a constitutional amendment.”
The state attorney general’s office did not respond to requests for comment.
Hochul’s spokesperson Avi Small called Thursday’s decision “a critical step to ensure more eligible New Yorkers can exercise their fundamental right to vote.”
“While right-wing extremists across the country try to undermine fair and free elections, Gov. Hochul is fighting to strengthen voting rights and protect the democratic process,” Small said.
In 2021, voters rejected a constitutional ballot that would have permitted so-called “no-excuse” absentee ballots. The amendment asked voters whether the constitution’s absentee ballot provision should remove the requirement that someone indicate the reason they were unable to vote in person. That measure failed after the New York Republican and Conservative parties led a multimillion-dollar ad campaign urging voters to “just vote no.”
In their ruling, the Appellate Court justices acknowledged the failure of that ballot amendment while noting that their analysis found that the proposal never needed to go before voters as a ballot measure. “There has been no express provision in the constitution mandating in-person voting since Jan. 1, 1967,” they wrote.
“That the [state] Legislature, in first proposing the amendment in 2019, may have assumed that a constitutional amendment was necessary to implement universal mail-in voting does not make it so,” the justices added.
The opinion also rejected the plaintiffs’ claim that the Legislature went beyond its authority in passing this law. The justices said the state constitution “grants the Legislature broad, plenary powers to prescribe the manner in which voting is to occur.”