(The Center Square) — New York's highest court is considering a legal challenge to the state's absentee voting law from Republicans who argue that it violates the state constitution and encourages voter fraud.
The Court of Appeals is scheduled to hear oral arguments on Thursday in a lawsuit challenging the Democratic-controlled Legislature's approval of a law in 2021 allowing New York voters to cast ballots through the mail.
New York Republicans, including Rep. Elise Stefanik, R-N.Y., filed a legal challenge arguing that the law directly violates the New York Constitution, which only allows voting by mail if the person is out of the state or country on Election Day, sick, taking care of someone who is ill, incarcerated or because of illness or physical disability.
The plaintiffs also argue that provisions of the law outlining the process of counting absentee ballots and how election officials handle questionable ballots is a recipe for voter fraud in federal, state and local elections.
"This law will continue to plague elections and shake public confidence in the electoral process," lawyers for the plaintiffs wrote in a legal brief. "Any person or person choosing to affect the results of an election via a fraudulent harvesting of absentee ballots has an invitation to flood the ballot boxes with illegal absentees, which cannot be objected to and will be swept into the count."
Passage of the bill followed the rejection of a constitutional amendment to authorize "no excuse" balloting by mail, which failed, with more than 55% of voters rejecting the referendum. Gov. Kathy Hochul, a Democrat, signed the measure into law.
In May, a state appellate court affirmed a lower court’s ruling dismissing the GOP-backed lawsuit, but the plaintiffs filed an appeal to the state Supreme Court, which agreed to consider the legal challenge.
In court filings, lawyers for the plaintiffs argue that the law "protects fraudulent votes from the post-election scrutiny that they have traditionally received" while favoring "fraudulent ballots over genuine ballots cast in person."
They also argue that the law's provision requiring provisional ballots for voters who requested absentee ballots but voted in person is deceptive because the provisional ballot “is certain to be invalidated and discarded.”
The conservative Public Interest Legal Foundation — which sued to block the expansion of mail-in voting in President Joe Biden’s home state of Delaware — sided with the GOP lawmakers' arguments, branding the law unconstitutional in a legal brief filed supporting the lawsuit.
"Granting all voters absentee status would render this text of the New York Constitution superfluous, redundant and without purpose," lawyers for the group wrote the court filing.
However, lawyers for New York's elections division argue that the law's requirements on absentee ballots are consistent with longstanding rules for contested in-person votes. In those situations, if a poll watcher disputes a voter’s eligibility to vote, the voter is allowed to vote if they sign an affidavit attesting to eligibility.
"That vote is accepted and counted, with no judicial review even if the poll watchers think the voter is lying," the state's lawyers wrote in a 24-page legal brief. "The presumption is in favor of counting the vote. This has been accepted as a regular and presumptively constitutional practice for decades."
The New York lawsuit is one of more than two dozen filed by Republican groups challenging 'no-excuse' absentee voting laws ahead of the November elections, many of them arguing the changes are unconstitutional.
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