NY judge says mail-in voting from fear of COVID-19 is unconstitutional

by ian

Ian Patrick, FISM News


According to a judge in New York, it is unconstitutional to count mail-in ballots before Election Day if those ballots were incentivized by fear of COVID-19.

Saratoga County Supreme Court Justice Dianne Freestone ruled on Friday that local boards of election should stop counting absentee ballots that have already been received.

In a 28-page ruling, Freestone said she took issue with the New York Legislature’s redefinition of absentee voting. After then-Governor Cuomo declared a state of emergency in March 2020 over the coronavirus pandemic, New York lawmakers amended an election law in light of fears of contracting COVID-19.

The amendment essentially expanded the meaning of allowing absentee ballots for reasons due to “illness” to also include fear of contracting the Sars-CoV-2 virus.

At the beginning of 2022, even though this provision was set to expire, the New York Legislature extended the absentee ballot provision again citing the threat of COVID-19.

A group of Republican committees and chairpersons sued the legislature over this extension, arguing that it is unconstitutional. While that suit is still progressing through the legal system, the group of Republicans also “filed the instant action seeking … declaratory and injunctive relief” in regards to the absentee voting provisions.

In her ruling, Freestone sided with the Republicans on the matter.

Referencing Proposal 4, a ballot proposal in 2021 that would have granted “no-excuse absentee voting” but was struck down, Freestone said the Legislature’s decision went against “the express will of the People.”

“[T]he Legislature appears poised to continue the expanded absentee voting provisions of New York State Election Law § 8-400 forward ab infinito in an Orwellian perpetual state of health emergency and cloaked in the veneer of “voter enfranchisement,” Freestone said.

At one point in her decision, the judge stated that the New York Legislature exceeded its authority under the New York State Constitution.

The framers of the Constitution did not intend to grant (and did not grant) the Legislature carte blanche to enact legislation over absentee voting, nor did the People of the State of New York vote to permit same under Proposal 4. Notwithstanding, the Legislature through its amendment and expansion of the definition of “illness” under New York State Election Law § 8-400 effectively permits any qualified voter in the State of New York to vote absentee and has thus exceeded its authority under the NYS Constitution and unquestionably violates the “spirit” of absentee voting.

Freestone ordered election boards in New York to stop counting already received absentee ballots and instead “preserve” them, either until after Election Day or until the previous lawsuit filed by the same group of Republicans is resolved. The ballots already counted will not be invalidated.