NY Judge Upholds No-Excuse Mail Voting Scheme Voters Rejected

New Yorkers overwhelmingly rejected a proposal in 2021 that expanded no-excuse absentee voting. But on Tuesday, the state’s highest court upheld a law passed and signed in 2023 by the state’s Democrat majority that effectively expands no-excuse mail-in voting anyway.

Democratic Gov. Kathy Hochul signed the “Early Mail Voter Act” into law in 2023. The law allows anyone to receive an early mail-in ballot with no excuse necessary. Only five Democrats in the state legislature opposed the legislation, alongside the entire Republican delegation.

New Yorkers must provide an excuse in order to receive an absentee ballot according to the state’s constitution. Members of the state’s Democrat-led legislature acknowledged this in their proposal to amend this section of state law, clarifying that the state constitution “only allows absentee voting if a person expects to be absent from the county in which they live … or because of illness for physical disability.” A ballot summary cited on Ballotpedia for the proposed constitutional amendment said the amendment would “eliminate the requirement that a voter provide a reason for voting by absentee ballot.”

But when voters had the chance to vote on the proposed amendment to permit no-excuse absentee voting in 2021, New Yorkers rejected the proposal by a 55-44 margin.

Having not gotten their way, the Democrat-led state legislature usurped the will of their constituents and passed a law in 2023 that expanded “early voting by mail,” which, effectively achieved the same end result of the amendment resoundingly rejected by New Yorkers two years prior: Mail-in voting had now been expanded with no excuses needed.

A cohort of Republicans, including Rep. Elise Stefanik, sued, arguing the law violated the state’s constitution. The plaintiffs specifically argued the law violated article II, section 2 of the state constitution which says, in part, the legislature can create law determining how voters who “may be absent from the county of their residence” or who “may be unable to appear personally at the polling place because of illness or physical disability, may vote and for the return and canvass of their votes.”

But Chief Judge Rowan Wilson upheld the law in a Wednesday decision, ruling plaintiff’s argument did not trump the “strong presumption of constitutionality” that, as he claims, “must” be “afford[ed] to the Act.”

But Wilson also acknowledged that the “sequence of events is troubling.”

“The voters considered the [2021] proposition and voted against it,” Wilson wrote. “Having lost the question before the voters, the legislature then decided that no constitutional amendment was required and passed the Act.

“Upholding the Act in these circumstances may be seen by some as disregarding the will of those who voted in 2021,” Wilson continued in the ruling. “But our role is to determine what our Constitution requires, even when the resulting analysis leads to a conclusion that appears, or is, unpopular.”

New York State Republican Assemblyman Anil Beephan, who voted “no” on the legislation, condemned the ruling as a “disappointing day for voter integrity” in the state.

“In 2021, the voters of New York State made their voices clear by overwhelmingly opposing this very measure at the ballot box,” Beephan said. “Despite this, the state’s supermajority chose to disregard the will of the people by rebranding the legislation and forcing it through.”

“This outcome, while unfortunate, is not surprising,” Beephan continued. “New York’s Court of Appeals has been packed, and the recent selection of a chief justice was marked by controversy–not based on merit, but rather on who would best align with the extremes of the supermajority. The court’s ruling today is a reflection of that reality.”

New York State Assemblyman Eric “Ari” Brown, a Republican, said he is also “deeply disappointed” in the decision.

“I remain steadfast in my belief that this decision disregards the will of New Yorkers who expressed their concerns during the 2021 referendum,” Brown said in a statement to The Federalist. “This change undermines the state’s constitutional voting traditions and should be re-evaluated to reflect the true intent of New York’s electorate.”

Derek Lyons, president of the election integrity group RITE, called the ruling an example of “judicial lawmaking.”

“In a remarkable act of judicial lawmaking, the New York Court of Appeals has rewritten New York’s Constitution to eliminate all limits on the legislature’s authority to regulate elections,” Lyons said in a statement. “For more than 150 years, New Yorkers have understood that their constitution requires in-person voting … And that is why they were asked, in 2021, to again amend the constitution so the legislature could implement no-excuse absentee voting for all voters. The voters said no. Today, a court declared that all of this was meaningless.”

Proposition 4 appeared on the ballot in 2021 more than a year after approximately “2.5 million New York voters requested an absentee or military ballot” during the Covid-19 lockdowns, Democrat and Chronicle reported, citing the state board of elections. “The state expanded eligibility in 2020 and 2021 to account for the coronavirus pandemic,” according to the outlet, despite that not being a legal excuse per the state constitution. As a result of the policy, the number of absentee ballots requested more than quadrupled in 2020 compared to 2016, according to Democrat and Chronicle.

Chairman of the New York State Conservative Party Gerry Kassar told The Federalist that secure elections are one of the “greatest concerns for the majority of Americans” and that this ruling jeopardizes them.

“The Court, which has become notoriously a far democratic leaning court, came up with novel arguments to indicate that they believe the state constitution was not violated. Yet the voters of the state took the view several years ago that this would violate the state constitution,” Kassar told The Federalist. “Our opposition is that this type of legislation enhances the possibility of fraud.”

“The electoral franchise was secure and accessible to New Yorkers,” Kassar said, adding that New Yorkers already had early voting, absentee voting with excuses, and in-person voting. “This legislation is increasing the access to indivduals who might have an interest in committing fraud,” he said.

Queens District Attorney Melinda Katz indicted Abdul Rahman in December after he allegedly submitted 118 absentee ballot applications during the 2022 Democrat primaries. An investigation later determined that someone — allegedly Rahman — had requested, filled out, and submitted the dozens of applications in other voters’ names.

Brianna Lyman is an elections correspondent at The Federalist. Brianna graduated from Fordham University with a degree in International Political Economy. Her work has been featured on Newsmax, Fox News, Fox Business and RealClearPolitics. Follow Brianna on X: @briannalyman2