Will Albany protect voters from illness?
While you weren’t looking, it got harder to vote in New York. A voting practice that made it easier to vote has ended and unless state lawmakers act in the next couple of weeks, it will be much harder to get a mail-in ballot.
Due to the COVID pandemic, New York State allowed voters to cast absentee mail-in ballots if they were concerned about contracting or transmitting that deadly illness. For the elections of 2020, 2021, and 2022, New York recognized that such concern over COVID was a justified way for a voter to obtain a mail-in absentee ballot. The pandemic ballot rule expired at the end of last year, restoring a more restrictive pre-pandemic rule.
Currently, all states will mail an absentee ballot to certain voters who request one. The voter may return the ballot by mail or in person. In 19 states including New York, an excuse is required, while 28 states and the District of Columbia permit any qualified voter to vote absentee without offering an excuse. In New York, the law limits access to an absentee ballot only in cases where the voter “may be absent from the county of their residence or … if [the voter] may be unable to appear personally at the polling place because of illness or physical disability.”
In response to the pandemic, New York interpreted the definition of “illness” to include a voter’s concerns about the risk of contracting or spreading a disease-causing illness. That was how New York voters could cast their ballots by mail, if they chose.
New York’s state Constitution is clear: All citizens have a right to vote. And while the Constitution also defines when a voter may obtain a mail-in absentee ballot, it also states that the Legislature has the authority to determine “the manner” in which the provisions are applied.
The Constitution clearly grants the power to implement that right to state lawmakers, but it is a “right,” not a privilege. And policymakers must, from time to time, ensure that obstacles to the exercise that right are as few as possible.
Such is the case with allowing absentee ballots. The state Constitution explicitly allows voters the opportunity to vote via an absentee ballot when they either may be absent from their county or unable to appear personally because of illness or physical disability. That provision of the Constitution specifically states that the Legislature is empowered to interpret how to best ensure that such voters will be able to obtain an absentee ballot and vote. It states that an absentee ballot may be used by a voter who “may be” unable to appear at the polls due to being outside their county of residence or due to illness or disability. Not “shall” or “will be” unable to appear, but “may” be unable.
In this way the Constitution appropriately leaves it to the voter to assess their situation in advance of an election and request a vote-by-mail ballot. This maximizes voter participation without intruding upon personal decisions about how to order one’s life.
The ongoing COVID-19 pandemic underscored the need for the state to broaden the interpretation of “illness” for the purposes of allowing absentee balloting. Since the pandemic’s onset, New York voters could interpret “illness” for purposes of requesting an absentee ballot to include avoiding the risk of contracting or spreading COVID and vote by mail. The courts have reviewed the action to define “illness” to include protection from disease and determined that the Legislature was within their power to do so.
For older voters, or those with chronic illnesses, that lack of choice could now place their health at risk – or force them not to vote at all.
Thousands of New Yorkers voted in this manner. It has been their choice. Those voters have chosen to cast their constitutionally protected right to vote via the mail and to do so in a manner that protects them from a deadly disease and/or protects poll workers from exposure. Absentee voting by mail is a choice that has now become part of the fabric of New York’s democratic process. But that choice has been taken away -- unless Albany acts in the next few weeks.
As lawmakers head down the homestretch of the 2023 legislation session, and with primaries for local offices a month away, they must make sure that New York is doing all it can to meeting that constitutional right to vote while protecting the health of voters themselves.
Blair Horner is executive director of the New York Public Interest Research Group.
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