Legislation Making Absentee Ballot Changes Permanent
SUMMARY
The Election Law Committee reissued a report supporting State legislation that would permanently change the definition of illness for purposes of absentee voting to include instances where a qualified voter is unable to personally appear at their polling place because there is a risk of contracting or spreading a disease that may cause illness to the voter or to other members of the public. The law was changed due to the Covid-19 pandemic; however, this addition expired on December 31, 2022. The Committee supports making this amendment to the Election Law permanent because it will provide clarity to County Boards of Elections, create uniformity across the state regarding absentee voters, and provide voters with the certainty that they may vote absentee if they are concerned about threats to their health or the health of others. This bill is also consistent with the constitutional limitations on absentee voting as found in Ross v. State of New York.
Originally issued April 2023; Reissued May 2023
BILL INFORMATION
A.3291 (AM Dinowitz) / S.7046 (Sen Fernandez) – amends chapter 139 of the laws of 2020 amending the election law relating to absentee voting, in relation to the effectiveness thereof; and to amend chapter 2 of the laws of 2022 amending the elecetion law relating to absentee voting in village elections, in relationto the effectiveness thereof.
REPORT
REPORT ON LEGISLATION
BY THE ELECTION LAW COMMITTEE
A.3291 (M. of A. Dinowitz)
S.7046 (Sen Fernandez)
AN ACT to amend chapter 139 of the laws of 2020 amending the election law relating to absentee voting, in relation to the effectiveness thereof; and to amend chapter 2 of the laws of 2022 amending the election law relating to absentee voting in village elections, in relation to the effectiveness thereof.
THIS LEGISLATION IS APPROVED
BACKGROUND
Article 2, Section 2 of the New York State Constitution allows for absentee voting by qualified voters who are absent from the county of residence on election day or are unable to personally appear on election day due to illness or physical disability. Section 8-400(1)(b) of the Election Law further specifies the application of the “due to illness or physical disability” provision of the Constitution. During the Covid-19 pandemic, the Legislature clarified this provision to provide that “‘illness’ shall include, but not be limited to, instances where a voter is unable to appear personally at the polling place of the election district in which they are a qualified voter because there is a risk of contracting or spreading a disease that may cause illness to the voter or to other members of the public.” Currently, however, this addition expired on December 31, 2022.
This bill would amend the Election Law to permanently change the definition of illness for purposes of absentee voting to include instances where a qualified voter is unable to personally appear at their polling place because there is a risk of contracting or spreading a disease that may cause illness to the voter or to other members of the public.
REASONS FOR SUPPORT
This bill amends Section 2 of Chapter 139 of the laws of 2020 and Section 4 of Chapter 2 of the laws of 2022 to remove the sunset provisions, which applied broadly to all elections conducted in the state. These amendments would permanently allow voters to vote by absentee ballot if they felt there was a risk of contracting or spreading a disease by personally appearing at their polling site. Making this amendment to the Election Law permanent will provide clarity to County Boards of Elections, uniformity across the state regarding absentee voters, and voters will have certainty that they may vote absentee if they are concerned about threats to their health or the health of others. We have learned from the pandemic that voters may rationally have concerns about their health from personally appearing at crowded polling sites, and those concerns are not necessarily limited to COVID-19. The flu and RSV viruses, for example, are also spread through respiratory droplets. This bill will guarantee that voters will continue to have the opportunity to vote absentee if they are concerned about threats to their health.
This bill is also consistent with the constitutional limitations on absentee voting. The court in Ross v. State of New York found as much.[1]
Accordingly, the Committee urges the Legislature to pass A.3291/S.7046 and make permanent this clarification, and to deliver the bill to the Governor’s desk immediately.
Election Law Committee
Rachel Harding, Chair
Reissued 2023
[1] Ross v. State of New York, et al., 2021 N.Y. Slip Op. 32094(U) (Sup. Ct. Niagara Co.), Sept. 8, 2021 (…”Election Law§ 8-400(1)(b) is declared valid and constitutional;”), aff’d., Ross v. State of New York (App. Div. 4th Dept.), Oct. 18, 2021, available at https://law.justia.com/cases/new-york/appellate-division-fourth-department/2021/899-1-cae-21-01300.html. (Website last accessed May 24, 2023).
