Allowing New Yorkers to vote by mail due to fear of COVID-19 is unconstitutional, a state judge said Friday in a ruling that Republican and Conservative Party leaders hailed as a victory for fair elections.
The 28-page ruling by Saratoga County Supreme Court Justice Dianne Freestone ordered local boards of election to stop counting the absentee ballots they’ve already received.
Instead, officials have to “preserve” the ballots until after Election Day or the resolution of a pending suit filed by state and local GOP and Conservative Party leaders.
Democratic officials immediately filed a notice saying they would appeal the judge’s decision.
In her ruling, Freestone said that the Democrat-controlled Legislature “appears poised to continue the expanded absentee voting provisions of New York State Election Law … in an Orwellian perpetual state of health emergency and cloaked in the veneer of ‘voter enfranchisement.'”
Rejecting arguments made by a lawyer for the state Board of Elections at a hearing earlier this month, Freestone said that “there are uncounted reasons for this Court to second-guess the wisdom of the Legislature.”
The judge stopped short of invalidating absentee ballots that have already been cast.
But her decision could lead to the overturning of a state law that blocks people from changing their mail-in votes by showing up to cast in-person ballots on Election Day.
That scenario could hurt Democratic Gov. Kathy Hochul, who’s been losing ground to Republican challenger Lee Zeldin in recent polls.
State GOP Chairman Nick Langworthy, a plaintiff in the case, said in a statement, “The (state) constitution has been on our side and we will continue to fight to uphold the will of the voters and to ensure honest elections in New York.”
Another plaintiff, Conservative Party Chairman Gerald Kassar, said, “This decision helps uphold the integrity of the electoral process, a major victory for New York voters and the rule of law.”
“Absentee-ballot voters have had the right to amend their votes on Election Day for decades, and cynical attempts by Gov. Hochul and the Democrat Party to strip them of those rights were wrong,” he added.
Last year, state voters rejected a proposed constitutional amendment that would have allowed no-excuse absentee voting in New York.
But lawmakers subsequently enacted a measure that allowed people to vote by mail if they feared catching COVID-19 by voting in person. That expansion of absentee voting is set to expire at the end of this year.
A spokesperson for the state BOE said Friday, “Our office is still reviewing the ruling and its impact on the upcoming election.”
Common Cause New York, a nonpartisan election-reform group, said that Freestone’s decision “might not even go into effect for this election.”
“And, even if it does, it would only affect the time and way absentee ballots are counted — you can still vote absentee as planned, and your ballot will still be counted,” the group added.