NYS Court of Appeals upholds law establishing early voting by mail

ALBANY — New York’s new law allowing residents to vote early by mail is constitutional, the state’s top court ruled Tuesday.

In a 6-1 decision, the Court of Appeals rejected a Republican lawsuit aiming to terminate the practice.

The state Republican committee and others claimed New York’s constitution mandated in-person voting with the exception of absentee balloting in which a person must give a reason, such as being out of town on Election Day, to vote early.

But the court disagreed, saying the State Legislature and Gov. Kathy Hochul were well within their powers when they approved a "no excuse" early-vote-by-mail law in 2023.

"There is no express or implied constitutional limitation on the legislature’s power to allow mail-in voting," Judge Jenny Rivera wrote in a concurring opinion for the majority.

New York lawmakers had been wrangling over early mail-in voting since expanding it temporarily during the height of the COVID-19 pandemic.

The Democratic-led legislature took action to offer voters a statewide referendum in 2021 to amend the constitution to expand absentee voting by allowing anyone to vote early without having to provide an excuse.

Voters rejected the proposal.

Democrats regrouped and passed a state statute in 2023, contending they didn’t need to amend the constitution to expand voting. Hochul signed it and the law took effect last New Year’s Day; called the "Early Mail Voter Act," it permits all qualified voters to vote early by mail rather than in person.

The GOP state committee and a number of Republican congressional members filed a lawsuit to try to get the law declared unconstitutional.

They said 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.

They also argued that the legislature, by offering the 2021 referendum, effectively admitted a constitutional amendment was required to change the state’s voting practices.

But the GOP lost the case in two lower courts before losing again Tuesday.

Chief Judge Rowan Wilson, writing for the majority, acknowledged the failure of the 2021 statewide referendum "is troubling" and upholding the new law "may be seen by some as disregarding the will of those who voted in 2021.

"But our role is to determine what our Constitution requires, even when the resulting analysis leads to a conclusion that appears, or is, unpopular," Wilson wrote.

Rivera, writing separately from Wilson, said her colleagues’ "hand wringing" about the 2021 referendum was pointless and "cannot serve as a factor in our constitutional analysis."

"The results of the ballot initiative and the Legislature’s response to its defeat simply have no bearing on the meaning of the constitution," Rivera wrote.

Judge Michael Garcia, the lone dissenter and the lone Republican on the court, said that "for more than 200 years" the state constitution "has been understood to restrain" the legislature’s power to change voting practices.

Wilson, setting aside what was understood or not, said Garcia "does not dispute that the court was never asked to decide that question; nor does he dispute that it is our unique role to do so."

Wilson also addressed — and dismissed — a claim GOP lawyers made during arguments before the court last month that the word "at" the election in a constitutional passage implied in-person at a physical location.

"Plaintiffs’ textual argument based on the word ‘at’ is meritless, and no member of this court accepts it," Wilson wrote.

Hochul hailed the 6-1 decision.

"Today’s ruling is a significant victory for democracy and another loss for those who seek to disenfranchise New Yorkers and undermine access to the ballot," the governor said in a statement.

GOP state chairman Ed Cox contended the court got it wrong, saying: "This holding is clearly contrary to what generations of New York legislators, attorneys and judges had decided and what the people said in 2021 when they rejected the amendment."

By Yancey Roy

yancey.roy@newsday.com@yanceyroy