A state Supreme Court judge has dismissed a lawsuit filed against the state of New York by North Country Rep. Elise Stefanik and other Republicans last year seeking to throw out New York’s Early Mail Voter Act, a universal mail-in voting law passed in September. The judge declared the Early Mail Voter Act “constitutional.” Republicans are planning to appeal the decision.

“This decision is wrong,” Stefanik, the House Republican Conference Chair, said in a statement. “We strongly disagree with the court’s decision and believe our position will be upheld on appeal.”

Stefanik spokesman Alex DeGrasse indicated that she plans to appeal the court’s decision in the state Supreme Court’s Appellate Division, Third Department.

The Early Mail Voter Act allows any registered voter to get a mail-in ballot, regardless of their reason for wanting to vote absentee. Before the law was passed, voters needed to meet certain criteria to be eligible to vote absentee.

Stefanik, along with other Republican and Conservative politicians, sought to have the new law thrown out entirely and deemed unconstitutional. They argued that because it was not passed via a constitutional amendment — as all previous expansions to mail voting had been — but rather via the state Legislature, it was passed unconstitutionally.

Justice Christa Ryba’s decision on Monday found that there’s nothing in the state Constitution that expressly prohibits the Legislature’s power to pass laws establishing alternative voting methods.

“The Court finds that plaintiffs failed to satisfy their burden to demonstrate beyond a reasonable doubt that the Early Mail Voter Act is unconstitutional,” she wrote, adding that the Republicans’ arguments “have been reviewed and found to be lacking in merit.”

She agreed with Democrats’ arguments that the law is an example of the Legislature exercising its “plenary power.” In constitutional law, plenary power is absolute and complete power. It gives the Legislature full power over how elections are conducted, as long as nothing else in the Constitution explicitly restricts it.

The law signed in September was passed by the state Legislature in June. State Sen. Dan Stec, R-Queensbury, and Assemblyman Matt Simpson, R-Horicon, voted against it while Assemblyman Billy Jones, D-Chateaugay Lake, voted for it.

The law took effect on Jan. 1 and is in place now. Stefanik and the other plaintiffs had requested the court to stall the rollout of the law in December, but this request was denied. Unless a higher court hears her appeal and sides in the GOP’s favor, it will be in place for the national election on Nov. 5.

This election carries national implications. Republicans currently hold a slim majority in the House, meaning they have more power to control the Legislature’s agenda. With all House seats up for election in November, political parties are clamoring to gain or maintain power through this election.

There is also a special House election next week in New York’s 3rd Congressional District will be held to fill the seat formerly held by Republican George Santos, who was recently expelled from Congress.

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The ruling

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Ryba said the Republicans faced an uphill battle in their case.

“Duly enacted statutes enjoy an exceedingly strong presumption of constitutionality,” she wrote. “A party asserting such a constitutional challenge bears the extraordinary burden of demonstrating that the law suffers from wholesale constitutional impairment in every conceivable application and under every set of possible circumstances; in other words, the challenger must establish that no set of circumstances exists under which the statute would be valid.”

As long as the provision could be constitutionally applied, it stands. Opponents must demonstrate that it suffers from “wholesale constitutional impairment” which she said only happens in rare cases.

The Constitution controls the Legislature by prohibition, which must be “necessarily implied.”

“When interpreting the Constitution the Court must not read beyond the language employed or add words that the framers chose not to place therein,” Ryba wrote.

“Plaintiffs’ entire complaint is based upon the premise that (Article 2) of the (state) Constitution requires all individuals to vote in person at their designated polling place,” Ryba wrote.

Article 2 is the part of the Constitution allowing for absentee voting in cases where a voter would be absent from their place of polling or ill at the time of election. Republicans argued that this limited absentee voting to these two conditions and that all other voting should be in person.

“Contrary to plaintiffs’ contention, there is no express language in (Article 2) that requires all individuals to vote in person at their designated polling place on the day of an election,” Ryba wrote. “Nor does that provision contain any express language prohibiting the Legislature from enacting laws that permit all eligible voters to vote by mail.”

She quoted Article 7 of the state Constitution, which says “All elections by the citizens … shall be by ballot, or by such other method as may be prescribed by law.”

“It in no way limits the Legislature’s inherent plenary power or its constitutional authority to enact laws that generally provide for voting methods other than by ballot,” she wrote.

She said the Legislature may use its plenary powers to enact legislation as it sees fit, and “the Court must avoid judicial legislation,” meaning it should keep out of these laws, unless they expressly violate another part of the Constitution.

“The NY Constitution bestows upon the Legislature the specific plenary power to prescribe laws establishing the method of elections for all voters,” Ryba wrote.

She pointed out that an express in-person voting requirement formerly existed in the state Constitution but was removed long ago. The Constitution now allows the Legislature to create laws to make special accommodations for certain voters who are physically unable to appear at the polls on election day.

“In the Court’s view, the removal of such language evinces the intent that in-person voting no longer be required,” Ryba wrote. “The mere fact that the framers specifically authorized the Legislature to establish a different voting method for a specific category of voters does not necessarily signify their intent to restrict the Legislature’s power to establish alternative voting methods for other voters.”

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Stefanik, Hochul’s response

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Hochul said the court’s ruling “reaffirms the constitutionality” of the early vote by mail law.

“The right to vote is sacred — a right that generations of Americans have fought to defend,” she said in a statement. “Despite the best efforts of its opponents, democracy has once again prevailed in New York.”

Stefanik said the court made the wrong decision.

“New York’s State Constitution is incredibly clear and requires a constitutional amendment to expand absentee voting,” she said in a statement. “Even the Far Left radical Albany Legislature understands this.”

She pointed out that in 2021, a proposed constitutional amendment which would have deleted all requirements for absentee voting was passed by the state Legislature and went to a public referendum on the ballot of the November 2021 general election. Voters rejected this proposal 55% to 45%.

Stefanik called this a “landslide” rejection.

One of those “no” votes was cast by Stefanik herself. Republican leaders strongly opposed mail-in voting expansions, even with a constitutional amendment.

The lawsuit said voters who voted against the proposed 2021 amendment have “had their votes effectively nullified” by the law passed in Sepember. Republicans have called the passing of the renamed law through the Legislature alone, without a voter-approved amendment, “semantics.”

“Albany Democrats continue to shamelessly believe they are above the law and that just because they changed the name from absentee ballot to mail-in ballot, they don’t need to follow the Constitution,” Stefanik said.

The amendment shot down in 2021 was proposed in 2019, even before the coronavirus pandemic prompted the state to expand mail-in voting. During the pandemic, the state added a third qualification for people concerned about contracting the virus at the polls.

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Background

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Up until now, there have been only two reasons for a voter to be eligible for an absentee ballot in New York — they would need to be outside their county on the day of the election, or be unable to appear at a polling place because of illness or physical disability.

The law passed in September keeps those requirements, but also adds to them, essentially opening up absentee ballots to all voters so they don’t need to meet either of those two qualifications. This is also referred to as “no-excuse absentee voting.” It requires boards of elections to mail a ballot to every voter who requests one.

Hochul said this is a way to make voting more accessible for people with busy lives. On Monday, she said it will “improve citizen participation and expand access to the ballot box for all eligible voters.”

This law applies to all elections — national, state, local and school — by amending the state election code in dozens of places where it says “absentee” to say “early mail.”

When a voter requests a mail-in ballot, they are sent an application by the board with a pre-paid postage envelope to mail it back in. Then, they are sent a ballot with another pre-paid postage envelope. Ballots must be delivered in person or by mail by election day.