NYS top court weighs Republican challenge to new early voting law

ALBANY — Judges on New York’s top court voiced skepticism Tuesday about a Republican lawsuit claiming the state’s new law allowing early voting by mail is unconstitutional.

The Court of Appeals, hearing oral arguments in the lawsuit, grilled GOP and Democratic attorneys on grand intentions and granular word choices concerning the voting law enacted last year.

Just some of the topics covered: Whether the state constitution mandates in-person voting. Whether there’s a practical difference between early voting and absentee voting. And whether use of the word "at" in relation to an election conveys more about time or location.

Two lower courts have upheld the state’s "Early Mail Voter Act," which permits all qualified voters to vote early by mail rather than in person. Also, unlike absentee voting, early mail voting doesn’t require a person to state a reason to vote early, such as being out of town on Election Day.

Though the seven-judge Court of Appeals didn’t clearly signal where it is leaning, the judges appeared to push back hard on claims by Republican lawyers that the law is unconstitutional.

"Is there anywhere expressly in the constitution . . . that said in-person voting is required?" Justice Shirley Troutman asked lawyers representing the Republican State Committee and a raft of elected Republican officials who filed the lawsuit.

"Not in those words," GOP attorney Michael Hawrylchak replied, "but we think there are textual indications" that the constitution requires in-person voting.

"Explicitly? Not implicitly?" Troutman continued.

"Well, the language we would point to is Section 1 (of the constitution) uses the phrase ‘at the election’," Hawrylchak said, meaning there’s an implication of a physical location.

This spurred, a few minutes later, a series of questions by Justice Anthony Cannataro, considered a conservative on a progressive leaning court, about whether "at" strictly means place.

"The problem here is the ‘at’ is being used, the preposition is being used to modify an election. And an election is a huge statewide undertaking," Cannataro said. “‘At’ can mean any one of hundreds of different polling places. It doesn’t lend itself very well to your suggested use of it. But when you think of it as a temporal indicator — on the occasion of the election — it, to me, makes a lot more sense."

At another point, Justice Caitlin Halligan pushed a Republican lawyer to agree that there was no real difference in the implementation of absentee and early mail ballots.

GOP lawyers contended that while in-person voting might not be expressly ordered, a section of the constitution that outlines procedures for absentee voting effectively means this is the only legal alternate to in-person voting.

Democratic lawyers had their turn in the spotlight, too.

Judges grilled them about a 2021 proposed constitutional amendment to allow early mail-in voting that was defeated in a statewide referendum.

Didn’t the State Legislature, controlled by Democrats, all but admit a constitutional amendment was needed to allow early voting, the judges asked.

Didn’t the failure of the proposed amendment indicate the will of the people of New York?

Despite that outcome, Democratic lawyers said, there still was no expressed requirement for in-person voting nor a ban on legislators taking up the subject after 2021.

"I don’t think that this case should turn on the failure of that 2021 amendment," said Jeffrey W. Lang, a deputy solicitor general representing the legislature and Gov. Kathy Hochul.

"What I would say is there was view at the time by many that a constitutional amendment was required to enact early, no excuse mail-in voting," Lang said. "It failed and a new legislature took a fresh look at the issue and determined it had the authority to enact remote voting."

"What the legislature thought in 2021 . . . is not legally dispositive," Aria Branch, attorney for the Democratic Congressional Campaign Committee, added at a later point.

A decision by the court is expected in August.

By Yancey Roy

yancey.roy@newsday.com@yanceyroy