Republican and Conservative Party leaders filed a lawsuit this week challenging the state’s laws governing who is eligible for an absentee ballot in New York and how they’re processed, prompting concerns from voting rights advocates and election administrators that it could sow chaos just weeks ahead of the general election.
The lawsuit, if successful in court, could have a dramatic effect on the November election. Along with challenging a 2022 law that expedites absentee ballot canvassing, the lawsuit seeks to throw out another recent law allowing people to vote absentee if they fear contracting a disease like COVID-19. That could have the effect of invalidating large numbers of absentee ballots that have already been requested and, in some cases, mailed back.
The latest lawsuit comes after the GOP successfully challenged New York’s Democrat-led redistricting process in a court earlier this year, resulting in new congressional and state Senate lines drawn by a court-appointed expert earlier this year. It’s part of an increasingly common legal tactic by Republicans across the country to file lawsuits that challenge election and voting rules.
The complaint was filed Tuesday in state Supreme Court in Saratoga County on behalf of more than half a dozen plaintiffs including Nick Langworthy, chair of the state Republican Party and a congressional candidate for the 23rd District; Gerard Kassar, chair of the State Conservative Party; and two Republican elections commissioners. They are suing the state Board of Elections, Gov. Kathy Hochul, and the leaders of the state Legislature.
The Republican-led plaintiffs are asking the court to declare unconstitutional a new law adopted last year to expedite absentee ballot canvassing, a process conducted by teams of bipartisan elections officials to determine if an absentee ballot envelope appears valid, invalid, or contains any curable defect, such as a missing voter signature. They also want the court to rule that the threat of COVID-19 is not a valid excuse to seek an absentee ballot.
A hearing date has been set for next Wednesday, Oct. 5 for the case.
“Let's face it, the pandemic is over,” said Erik Haight, the Dutchess County GOP elections commissioner and a plaintiff in the suit. “So to continue pandemic-era rules in perpetuity is inherently flawed.”
Hochul’s office declined to comment. A representative for state Attorney General Letitia James, whose office will represent Hochul’s administration in court, did not immediately respond to requests for comment Friday.
GOP lawsuit seeks major changes
The plaintiffs argue the law limits their ability to challenge a voter’s ballot with judicial oversight.
“When the state Legislature took away the court's ability to have jurisdiction over such an important process, the Republican position is that that's unconstitutional,” Haight said. “It's patently unfair.”
The plaintiffs also want the court to invalidate absentee ballots sent to voters who submitted prefilled absentee ballot applications that included a box already checked for temporary illness. As an alternative, they want local election boards to proactively confirm the reason the voter requested the absentee ballot before it’s canvassed and counted. Since 2020, candidates from both parties have mailed out these prefilled absentee ballot applications, but Republicans have made an issue of forms mailed out this year by the New York State Democratic Committee.
That’s on top of the attempt to strike down the law allowing any voter to use the risk of COVID-19 as a valid excuse to apply for an absentee ballot — which, if granted, could force elections officials to contact those who have already used that excuse and ask them to reapply.
In a statement late Thursday, Langworthy painted the lawsuit as an attempt to protect against a Democrat-led effort to alter the absentee ballot rules in their favor, accusing the opposing party of having “thwarted the Constitution.”
“As we did with (Democrats’) illegal gerrymander scheme, we are taking their unconstitutional laws to the courts to protect voter integrity,” Langworthy said. “Kathy Hochul and the Democrat legislature can’t talk about their disastrous record so they are stopping at nothing to try and undermine free and fair elections in New York, but we will not let it stand.”
As we did with (Democrats’) illegal gerrymander scheme, we are taking their unconstitutional laws to the courts to protect voter integrity.
Similar to Republican-led lawsuit challenging redistricting, which was filed in rural, GOP-dominated Steuben County, this case was filed in Saratoga County, where Republicans outnumber Democrats and hold both Supreme Court justice seats.
This absentee ballot case was assigned to Justice Dianne Freestone, a Republican who was elected in 2019 and previously served as first vice chair of the Saratoga County Republican Committee from at least 2016-2018. The Saratoga County Republican Committee is also a plaintiff in this lawsuit.
State officials say law must be followed
On Thursday morning, the topic of the pending lawsuit came up during a previously scheduled virtual meeting with the co-executive directors of the state Board of Elections and commissioners from across the state. The message from the bipartisan leaders was clear and unequivocal.
“We instructed counties that absent a court order, they are obligated to follow the statute and canvass absentees within four days,” Jennifer Wilson, a spokesperson for the state BOE confirmed in an email to Gothamist on Friday.
Dustin Czarny, the Democratic elections commissioner from Onondaga County and the Democratic caucus chair for the New York State Elections Commissioner Association, said it was “chilling” to see this lawsuit filed right before the election.
He noted the absentee ballot canvass law was passed last June, signed into law last December, took effect in January and was in place, without challenge, for both the June and August primary elections. The COVID-19 pandemic excuse for absentee ballot applications has been available for voters since March 2020.
“They've had plenty of time to bring this lawsuit,” said Czarny. “To wait until after absentee ballots have already been issued is going to cause chaos in the system.” He said his county has already had 55 absentee ballots returned as of Thursday, with more coming in each day.
They've had plenty of time to bring this lawsuit. To wait until after absentee ballots have already been issued is going to cause chaos in the system.
Haight said Dutchess County hasn’t received any absentee ballots back yet for the general election. But he said he intends to canvass them within four days, as currently required, absent judicial action on the lawsuit.
Perry Grossman, an attorney who works on election and democracy issues for the New York Civil Liberties Union, said the plaintiffs were trying to make absentee ballot voting harder by claiming a set of rights that are not actually set forth in the state constitution.
“What the Republicans seem to be asking for here is some new right to challenge people’s votes, which is simply nowhere to be found in the New York State Constitution,” said Grossman. “These are the sort of pernicious distractions we see in other states that’s really intended to undermine public confidence in elections and it is dispiriting to see it here in New York.”
Haight said that line of criticism is “pure baloney” and “feigned outrage.”
“The rules that we had prior to this law were just fine,” Haight said. “Nobody that needed an absentee, for all the excuses permitted under the law, was prohibited from having an absentee.”