Senate Deputy Leader Gianaris at the polls (photo: @SenGianaris)

In the final days of the 2023 session, the State Legislature passed a last-minute bill to bring a new form of universal mail-in voting to New York, relying on a novel interpretation of the state constitution that has so far required an "excuse" for absentee voting.

The "New York Early Mail Voter Act" would bring New York as close as possible to universal, no-excuse absentee voting (or its equivalent) without amending the state constitution by allowing all voters to mail-in a ballot during the nine days of early voting that prefaces every primary and general election, beginning in 2024. Because mailed ballots would be accepted through election day, the bill would essentially open a parallel vote-by-mail system to New York's existing absentee ballot system, which would also remain on the books.

The latest version of the substantial, 41-page bill was introduced in the last week of the legislative session and quickly passed by the State Senate's Democratic majority. On Friday, the last full day of the legislative session, the bill had gained momentum in the Democrat-controlled Assembly, having moved from the Ways And Means Committee to the Rules Committee, before passing on the floor late in the evening.

Governor Kathy Hochul has not said whether or not she will sign it. In a Saturday email, a spokesperson for the governor said she will review the bill.

Senate Deputy Leader Michael Gianaris of Queens and Assembly Member Karines Reyes of the Bronx, two Democrats and the bill's prime sponsors, said the act will make voting easier and help boost New Yorkers’ anemic voter turnout. Republicans raised alarms that the bill simply exploited a potential loophole in the state constitution and promised a legal challenge. Good government groups, which have pushed for other ways to expand voting by mail, have largely stayed silent on the new bill, with some expressing support and others skepticism about the rushed and opaque process of passing it.

The New York State Constitution allows registered voters to request and cast an absentee ballot if they meet any of a list of excuses including illness, incarceration, being out of town, and others. At the onset of the pandemic, leaders in Albany, first through executive order by Governor Andrew Cuomo and later by temporary state law, expanded the definition of illness to include the risk of spreading a disease like COVID-19. That provision expired at the end of 2022.

"Voting is a fundamental right and the easier we make it to vote, the healthier our democracy will be,” Gianaris said in a statement Thursday. “I am proud the State Senate passed this bill and continues to build on its important work of expanding access to the ballot box for all New Yorkers."

In 2021, Democrats and reform advocates were handed a stunning defeat when voters rejected a state constitutional amendment to create no-excuse absentee voting that had been approved by two successive classes of the Legislature and championed for years by good government groups.

Republicans condemned the Early Mail Voter Act as a "workaround" of the state constitution and the will of New Yorkers who voted down the amendment, which was defeated after a robust opposition campaign by conservatives and virtually no effort by Democrats to garner public support.

"This bill looks an awful lot like…the constitutional amendment that was defeated overwhelmingly by voters in 2021, which would give essentially no-excuse absentee balloting," said Senator George Borello, a Western New York Republican, in the Tuesday debate on the Senate floor that lasted just three minutes before the bill was passed with nearly full Democratic support. "Isn't this the same thing, or why aren't you just proposing another amendment?"

"No, you are mistaken…,” Gianaris responded. “The referendum was relevant to the absentee ballot process. This bill relates to a form of early voting.”

Article 2 Section 2 of the state constitution outlines the procedures and requirements of absentee voting, including the excuses. According to Alexander Marion, Gianaris' spokesperson, the bill rests its legal rationale on a passage in Article 2 Section 7 that appears to allow voting methods to be set by law: "All elections by the citizens…shall be by ballot, or by such other method as may be prescribed by law, provided that secrecy in voting be preserved," it reads.

If it becomes law, a legal challenge could be next.

"There are open constitutional questions about this novel approach that are likely to be heavily scrutinized by the appellate judges heading into the 2024 elections," said Jarret Berg, an election lawyer and co-founder of the nonprofit Voter Early New York, which has pushed early voting and many other election reforms to expand ballot access. "It's unfortunate that the lawmakers in both houses failed to hold a single public hearing or briefing to discuss the proposal, and the alternatives."

A constitutional challenge may be complicated by another bill passed Friday in the Senate and after midnight in the Assembly. That bill would require constitutional challenges to election law to go through courts in one of just four counties — New York (Manhattan), Westchester, Albany, and Erie; an effort by Democrats to combat conservative forum-shopping in election law cases. (The bill was introduced earlier this year after Republicans in 2022 brought a successful challenge against the Democratic Legislature's new legislative district lines before a Republican judge in rural Steuben County.) It, too, may be subject to a legal challenge.

This year, election reformers had largely backed a different change to mail-in voting that would have reinstated the pandemic-era definition of illness. A bill sponsored by Senator Nathalia Fernandez and Assembly Member Jeffrey Dinowitz, both Bronx Democrats, and supported by the Let New York Vote coalition, a large group of labor and advocacy organizations, would have done that.

The Early Mail Voter Act moved swiftly through the Legislature this week, having been revised and introduced on Monday June 5 in the Senate and Tuesday in the Assembly. It advanced without going through the election committees in either house.

Common Cause New York, an election watchdog and one of the leaders of the Let New York Vote advocacy coalition, called the legislation a "hugely important pro-voter reform" in a statement shortly before it passed the Assembly on Friday.

"Allowing New Yorkers to vote by mail increases voter turnout in harder to reach populations, including young people and voters of color," read the statement, which pointed to the 2020 elections, when 1.7 million New Yorkers mailed ballots for president after the pandemic expansion of absentee voting. "[N]ot only is this absolutely legal under our constitution, but the right thing to do."

For Republicans, the issue was not the process as much as a longstanding opposition to expanding voting methods.

"We saw what's happened in the past when [universal absentee voting] overwhelms the system here," Borello said on the Senate floor Thursday, claiming without evidence that some mail-in ballots may go uncounted under a no-excuse mail-in system. "I continue to say the most important thing in New York State and across the nation is not that everybody votes – because at the end of the day this is the United States and you can still choose not to vote – so circumventing the system and overwhelming the system to ensure that we have all of these people that may be able to vote by mail or may not could prevent those people that have to vote by mail…from actually having their ballot count."