New York’s process for inspecting absentee ballots ground to a halt Thursday as Republicans appeared willing to defy a court order requiring it to proceed — all before apparently reversing course sometime in the afternoon.
At least 18 Republican elections commissioners across the state refused to process absentee ballots Thursday, with another 17 unwilling to commit to doing it on apparent advice from their party’s lawyer. That’s according to an affidavit filed by Brian Quail, Democratic counsel for the state Board of Elections.
Albany, Rockland and Suffolk were among the largest counties refusing to canvass absentee ballots. New York City was not among the local boards refusing to canvass — a process where local elections officials inspect ballots and prepare them for counting within four business days of when they’re received.
The Republicans took their position in spite of a stay issued Wednesday by state Appellate Division Associate Justice John Egan, who ordered the canvassing process to proceed while an appeal is ongoing, after last week’s ruling in a Saratoga County State Supreme court.
“[These] unfolding events further demonstrate the chaos that the lower court decision has already injected into the orderly administration of the mechanics of our democracy,” Quail wrote.
The standoff between Democratic and Republican elections officials continued throughout the day Thursday until 2 p.m., when Quail claimed Todd Valentine, the state Board of Elections’ Republican co-executive director, informed Democrats that the GOP would agree to resume ballot counting and canvassing Friday — assuming Egan doesn’t alter his stay before then, as Republicans have requested.
In an email sent to GOP commissioners late Thursday afternoon, Valentine said “All counties are expected to open and scan absentee ballots.”
His concession came after state Attorney General Letitia James, a Democrat, sent a letter to elections officials that concluded ballot processing should resume.
Quail laid out his side of the story in a sworn affidavit filed with the state Appellate Division, accusing Republicans of violating Egan’s stay.
The partisan standoff comes after days of hand wringing from Democratic elections officials who warned that their Republican counterparts were threatening to opt out of any additional absentee ballot processing or scanning after Republicans won a lower court ruling that found a portion of the state’s election law unconstitutional.
Democrats, including James’ office, appealed that ruling to the Appellate Division, Third Department, with a hearing set for Tuesday and a decision expected soon after.
The situation grew so dire that James issued her warning letter to all local election boards on Thursday afternoon. It explicitly referred to the ruling issued on Friday where a State Supreme Court judge in Saratoga County found part of the state’s new absentee ballot law was unconstitutional and ordered a halt to that canvass process and the preservation of all election materials.
“As a result, the trial court’s orders have no current legal effect, and local BOE officials must immediately resume their duties pursuant to the Election Law,” the letter states. “BOE officials are bound by these obligations regardless of whether they are a party to the lawsuit.”
A national playbook comes to New York
The main issue in the ongoing, Republican-led lawsuit remains the timing of when absentee ballots will be processed and counted — the GOP argues it should happen after Election Day. A separate but related lawsuit challenges whether absentee ballots cast because of a fear of COVID-19 — as allowed by a pandemic-era state law — are constitutional.
The Appellate Division will hear appeals in both cases on Tuesday in Albany.
Democratic officials say the current legal challenges smack of a national Republican effort to toss out valid votes to help Republican candidates in close contests.
“It’s all about moving the counting back until after Election Day, sowing chaos, creating doubt and then in close elections, descending on them with teams of lawyers to try to throw out legitimately cast ballots,” said Dustin Czarny, the Democratic Commissioner for Onondaga County and the head of the Democratic Caucus for the New York State Elections Commissioners Association.
“It’s the Trumpification of the New York State GOP that we’re seeing in other states and haven’t seen in New York until now,” he added.
The GOP won an initial ruling last week that threw out 2021 reforms that overhauled the prior process, which took place after Election Day and often led to significant counting delays in close races. But Egan blocked the entire ruling — including an order requiring the mail-in ballots to be preserved — from taking effect while the appeal is heard.
Democrats said Egan’s stay meant everything reverted back to the “status quo,” with local elections officials required to inspect the ballots as they’re received — and the first batch of ballots due to be scanned and counted Friday.
Interpreting status quo
But Republicans had a different definition of status quo: They said it should mean the ballots won’t be opened until after Election Day, because their ongoing lawsuit would effectively be moot once the ballots are opened. They’ve asked Egan to alter his stay, but so far he hasn’t.
“Republican commissioners have been advised again to do no harm, keep the genie in the bottle because once the ballots are separated from the envelope, they're going to count,” Erik Haight, a Dutchess County commissioner who chairs the Republicans’ statewide elections officials caucus, said Wednesday evening.
“So the Democrats don't want to have to make an argument on the merits, they want to just do an end run around the back door and get these ballots opened. That way they don't ever have to get to the merits.”
Democratic commissioner Kathy Donovan said in her 35 years at the Albany County Board of Elections, she’s never experienced anything like the dysfunction that’s imperiled her agency in the last week. Her Republican counterpart, Rachel Bledi, had refused to continue the canvassing process on Wednesday.
In an email sent to Donovan, the Albany County Democratic commissioner and an attorney in the Albany County Law Department , Bledi insisted that the “stay” was specific to the plaintiffs in the case, according to a screenshot shared with Gothamist..
“It did not provide any specific direction to the counties. No county boards are listed, mentioned, or a party to that order,” Bledi wrote.
Bledi did not immediately respond to a request for comment.
Late Thursday, Gov. Kathy Hochul, Sen. Chuck Schumer and other Democrats sued Bledi in an attempt to force the issue.
The language in Bledi’s email appeared to be pulled verbatim from an email forwarded by Valentine, the Republican co-executive director of the New York State Board of Elections, on behalf of the attorney for the Republican plaintiffs, John Ciampoli.
Donovan said she was most concerned about voters who applied for absentee ballots and the confusion this may be causing them. “They don’t know if their votes have been cast,” said Donovan, who noted that voters who applied for an absentee ballot can no longer vote in person on machines during early voting, Oct. 29 - Nov. 6, or on Election Day, Nov. 8.
Instead, voters who try to vote in person after applying for an absentee ballot will be given an affidavit ballot. Donovan also lamented the timing of the lawsuit.
“I can't believe that they're trying to pull off something like this at this stage of the game,” she said.