So much for “no means no.”
That’s the message from the state Court of Appeals, which ruled last week that New Yorkers don’t need an excuse to cast an absentee ballot by mail when they’re otherwise able to vote in person — even though the voters themselves have directly rejected such a measure.
Mail-in voting is hardly a revolutionary idea: Oregon since 2000 has conducted elections exclusively by mail, and several other states have followed, including Vermont.
But it involves an important balancing act, as state officials seek to maximize election participation while minimizing — to varying levels of success — fraud.
That’s what made the new ruling from New York’s top court so problematic.
In 2021, state lawmakers put a proposal to allow no-excuse absentee voting on the ballot in a referendum — and voters defeated it by a 10-point margin.
Instead, they left in place New York’s decades-old rules that let people vote absentee only if they were ill or physically disabled, or outside the county on Election Day.
The Legislature could have had another run at persuading voters as early as 2023.
Instead, lawmakers went rogue, passing a law allowing no-excuse absentee voting by giving it a different name — “early mail voting.”
A legal challenge followed, with opponents arguing that legislators had illicitly changed a key part of the state’s voting rules without amending the Constitution, as required by law.
But the court, shockingly, went along with it, voting 6-1 to let the new law stand.
To be sure, it wasn’t easy: The judges in the majority had to figuratively go off-roading around more than 200 years of precedent.
Chief Judge Rowan Wilson wrote, “It is not certain that the Constitution ever required in-person voting.”
A remarkable assertion given that, as my colleague Cam Macdonald has explained, New Yorkers have been casting secret ballots in-person since the 1770s — long before the US Postal Service was even selling stamps — and later followed strict rules about when they could vote absentee.
Even ignoring those two centuries of history, the court still struggled to gloss over what had happened in these last three years.
“Admittedly,” Wilson — whose left-leaning jurisprudence includes an opinion arguing for legal rights for a Bronx Zoo elephant — wrote, “the recent sequence of events is troubling.”
“The voters considered the proposition and voted against it,” Wilson added.
“Having lost the question before the voters, the legislature then decided that no constitutional amendment was required and passed the [Early Mail Voting] Act.”
But “troubling” enough for the court to tap the brakes?
Not quite.
The court acknowledged that voters had rejected a proposed constitutional amendment — and then allowed the Legislature to proceed as if one hadn’t been necessary in the first place.
In a scathing 29-page dissent, Associate Judge Michael Garcia was the lone voice of reason.
Garcia shredded the contradictory logic on which his colleagues had relied, namely their suggestion that a key provision of the state Constitution related to voting had been changed in 1966, but that no one had bothered to take note — then or since.
“We can expect that whatever criticism of the legislature’s actions the majority musters will have all the effect of a strongly worded letter to the editor of a local newspaper on an issue of good government,” Garcia wrote.
“The reader applauds the sentiment but laments being powerless to impose a remedy. But this Court has both the power and the duty to remedy what happened here, and our failure to do so diminishes us and nullifies the will of the People.”
The issue here extends far beyond how and when someone can vote by absentee ballot.
The Court of Appeals is developing a far more troubling pattern of disregarding the law in pursuit of particular outcomes.
The court, in the past 15 years, has effectively voided the state’s prohibition on “gifts” of public monies to private businesses; loosened the definition of “gambling” so as to make legislative restrictions almost meaningless; and allowed state lawmakers to get pay raises from an unelected commission, despite a section of the state Constitution specifically prohibiting it — just to name a few.
These are not extreme circumstances or rare exceptions.
They are part of a continued erosion of the rule of law in Albany.
New Yorkers can be forgiven for wondering, and worrying: What will its courts do next?
Ken Girardin is research director at the Empire Center for Public Policy in Albany.