NY Judges Question GOP Arguments Against Mail-In Ballot Review

Republicans struggled to justify to judges on New York’s highest court Tuesday that a state law permitting the counting of questionable mail-in ballots is unconstitutional because it gives the upper hand to one political party.

The case centers on Republicans’ challenge to a portion of the state’s election law that allows local election boards to consider an absentee or mail-in ballot valid and count the vote, even when there is a split between Democratic and Republican representatives about whether the ballot envelope is valid.

Republicans say the provision, which was included among a slate of election law changes enacted in 2021, unconstitutionally allows election boards to make unilateral decisions on the validity of mail-in ballots and doesn’t allow the courts to adjudicate the issue. Attorneys also told the court Tuesday there’s a chance that “political operatives” could flag certain ballots for commissioners who could then deem them valid or invalid based on the votes inside.

Court of Appeals Associate Judges Jenny Rivera and Anthony Cannataro questioned during oral arguments how the ballot-counting law is partisan if it applies to both parties.

“Even if as you say one commissioner has the upper hand, that applies to both commissioners,” Cannataro said. “The person claiming the invalidity has more power, no matter what side they’re on in terms of political party.”

Attorneys for the Republicans—Adam Fusco of Latham, NY, and Paul DerOhannesian of DerOhannesian & DerOhannesian—argued the law takes away the opportunity for bipartisan action.

The best way to deal with questionable ballots is to put them in the same bucket of ballots determined to be invalid and allow either side to contest the determination in the court, Fusco said.

Rivera noted, though, that process could also “offend the constitution” because the person whose ballot wasn’t counted might never have the opportunity to challenge the decision in court.

Tuesday’s arguments also raised questions among the judges about how to handle in-person ballots, which are presumed to be valid and counted on election day.

“If we were to decide the presumption of validity fails for mail-in ballots, does that mean the in-person presumption would also have to fail?” Rivera asked.

That would be an “awful result” but it could be the next argument up for debate, said Christopher Massaroni of Hodgson Russ LLP, arguing on behalf of state Senate Democrats.

“I fear that might be the next argument, that if this presumption doesn’t apply, that could form a basis for a challenge to the in-person procedure,” he said.

Republicans are challenging an August decision from the New York Supreme Court Third Appellate Department that found the ballot canvassing law is constitutional. The appellate overturned a lower court order from May that sided with Republicans.

The New York Attorney General’s office represents the state. Hacker Murphy LLP represents state Senate Democrats.

The case is Amedure v. State of New York, N.Y., No. APL-2024-00121, oral argument 10/15/24.