Democrats and voting-rights activists in New York are trying to convince a Republican judge that a GOP-backed lawsuit seeking to upend the state’s absentee ballot laws is an attempt to sow doubt about the voting process in the weeks leading up to the Nov. 8 election.
In court papers filed this week, the New York Civil Liberties Union and attorneys representing the defendants — including Gov. Kathy Hochul, a Democrat — made separate cases that reached the same conclusion: The Republican legal challenge is without merit and should be rejected.
The battle spilled into court on Wednesday, when 14 election law attorneys from both parties descended upon state Supreme Court Justice Dianne Freestone’s brick-walled courtroom in the Saratoga County village of Ballston Spa. Republicans are arguing for an order seeking to pause absentee ballot canvassing, the process of reviewing ballots for eligibility and preparing them for counting. Democrats say such a move is preposterous.
“We've used this canvassing procedure in two primary elections and seven special elections without the sky falling and terrible things happening,” Brian Quail, an attorney for the Democratic faction of the state Board of Elections, said during the hearing. “Just lots of votes actually getting counted, cast by valid voters in New York.”
The state Republican Party joined with the Conservative Party and other like-minded plaintiffs last week to file a challenge to the state’s 2021 absentee ballot reforms, arguing they violate the state constitution and deprive candidates of their ability to get the courts to intervene in the absentee-tallying process.
Among other things, the laws at the center of the suit require mail-in ballots to be canvassed as they’re returned. Previously, canvassing didn’t occur until after Election Day, which led to significant delays in counting — particularly during the 2020 elections, when the pandemic triggered a higher percentage of voters to cast a mail-in ballot. (It also contributed to New York securing the ignominious honor of certifying the last congressional contest in the nation where Rep. Claudia Tenney eked out a win in the 22nd Congressional District in central New York.)
The GOP is also challenging another law allowing anyone afraid of catching an infectious illness (such as COVID-19) to vote absentee in this year’s elections by claiming what’s known as “temporary illness,” continuing a pandemic-era policy that has been in effect in one form or another since 2020. And the party is seeking to invalidate any absentee ballots sent to voters who submitted prefilled absentee ballot applications that included a box already checked for temporary illness.
Attempt to disenfranchise?
The timing of the lawsuit has angered Democrats and voting rights advocates, who have questioned why the Republicans and Conservatives waited until so close to Election Day to file the challenge.
"They're trying to disenfranchise a lot of New York voters,” said Perry Grossman, a supervising attorney for the NYCLU, which is leading an attempt to intervene in the court case with assistance from Common Cause/New York, a good-government organization.
“They're trying to functionally disable absentee balloting," Grossman added.
As of Tuesday, more than 165,000 absentee ballots were sent to voters who requested them ahead of the general election, according to the state Board of Elections. Of those, more than 2,000 had already been returned. Elections officials also note there is no way to determine if the reason a voter selected “temporary illness” as the excuse for voting by absentee ballot was related to COVID or another health issue.
But John Ciampoli, a longtime Republican election attorney who is leading the lawsuit, argued that the timing of the legal challenge is appropriate because the issue is ripe. The new canvassing measures have never been used for a general election, and the lead plaintiff – Republican state Senate candidate Rich Amedure — didn’t run in a primary, so he didn’t yet suffer an “injury” to have legal standing to sue. (The laws were in place for both of the state primary elections earlier this year.)
Ciampoli made a motion in court Wednesday to essentially pause the absentee-canvassing process while the lawsuit is ongoing — which drew opposition from the various Democratic lawyers.
“Contrary to what I've heard from the other side in the press, this would not upset the election process at all,” Ciampoli said in court. “But rather we've had absentee ballots in New York state since approximately 1927, so it would be restoring the process to … the same as it has been for approximately 95 years.”
The Republican attorney suggested the state law allowing anyone to vote absentee if they’re afraid of contracting illness is unconstitutionally broad, saying it essentially allows anyone to vote by mail despite New York not being a vote-by-mail state.
“Election Day usually follows on the heels of Halloween,” Ciampoli said. “So if I'm afraid of black cats, if I'm afraid to walk under a ladder because I might break my leg, if I'm afraid of ghosts and goblins that might put a hex on me and somehow make me ill, that under this (law) would entitle me to an absentee ballot.”
Plaintiffs are seeking office
Ciampoli is currently running as a Republican candidate for State Supreme Court in the 9th district, which includes Westchester, Putnam, Rockland, Orange, and Dutchess counties. Among the other plaintiffs in the lawsuit is state GOP Chairman Nick Langworthy, who is running for Congress and won a bruising August primary against fellow Republican Carl Paladino.
Republicans filed the suit in Saratoga County where it was assigned to Freestone, the former vice chair of the Saratoga County Republican Party, another plaintiff in the case. None of the Democratic attorneys in the case have so far filed a motion to change the venue of the case; the attorney general’s office did not respond to an email seeking comment on the issue.
Freehold set another hearing for this coming Wednesday, where she suggested she would rule on the Republicans’ push to pause absentee ballot canvassing.
In its motion to intervene, NYCLU attorneys wrote that Republicans are trying to “wreak havoc by changing the voting rules in the middle of an ongoing election based on fanciful theories of state constitutional law and wild allegations of potential fraud.”
The NYCLU also submitted affidavits on behalf of five voters who would be directly affected by the outcome of the lawsuit, as well as from Susan Lerner, executive director of Common Cause/New York.
One of the voters, Deborah Porder, 68, of Westchester County, said that her immune system was weakened after undergoing chemotherapy 20 years ago. “My white blood cell count never went back to normal,” said Porder.
Since the start of the pandemic, she has refrained from taking public transportation, eating in restaurants, and engaging in other public activities because the risk to her health is too great.
Recently, her husband traveled to Florida after his 97-year-old mother died. When he returned, he came down with COVID and gave it to Porder. He recovered in a week; she was still sick after a month.
“I don’t want to have to risk getting sick again with another omicron variant to have my right to vote,” said Porder. “I think it’s very unfair for them to take this away and frankly, I was upset that the law itself that permits this reason for voting absentee is expiring at the end of the year.”
Four other voters provided sworn affidavits explaining why they requested an absentee ballot and the potential harm it would cause if they could not cast their vote that way.
They include another cancer survivor, a senior who does not want to risk COVID exposure, a person who is immunocompromised, and the mother of 5-week-old twins who is concerned about exposing her newborns to the virus.