In New York, making new laws and changing old ones is supposed to be a deliberative process. Normally, lawmakers introduce bills, the bills get referred to a committee, committee legislators and staff review the provisions, and then – sometimes – the bill is put to a vote. From there the bill can be sent to the relevant floor of either the Senate or Assembly for final consideration. If approved by both houses, that bill then goes to the governor and his staff for review before action.
Deliberation is so important that the state Constitution mandates a minimum three-day period for review of legislation before it can be acted upon in either house, unless the house and the governor certify that the cooling off period be waived for some important reason. (A provision that often gets abused in order to ram through a particular bill.)
Changing the law is a process that should be subject to intense scrutiny prior to approval.
That’s how the system is supposed to work and usually does, except for now.
Due to the COVID-19 pandemic, earlier this past winter the Legislature relinquished its responsibility to deliberate to the governor. The reasons were that government needed to act quickly to respond to the crisis and the Legislature did not have rules in place that allowed it to safely function while maintaining adequate social distancing.
The Legislature kept a final veto over gubernatorial lawmaking, but suspended the normal processes under the state Constitution.
Over the past four months, the governor has enacted many laws to respond to the crisis.. But the public deliberative process was short-circuited as the executive branch reacted quickly to the crisis.
One of the decisions made by the governor illustrates the benefits and weaknesses of his new authority.
As the pandemic raged, it became clear that the June primary – for both Presidential and state offices – posed a public health risk. Under state law, voters must – by and large – in person troop to the polls in order to cast their ballots. Some states, like Oregon, conduct their elections through the mail, but New York requires in-person votes, except under one circumstance. If a voter is too ill to vote or expects to be out of the state, that voter can request an absentee ballot.
In the absentee ballot application, the voter must attest to the limitation that would keep them from the polling booth. If approved, those voters receive a ballot in the mail.
The governor seized on the “illness” excuse as a way to expand the law to protect voters. He issued an executive order stating that voters’ possible exposure to the COVID-19 virus met the definition of an “illness” and instructed boards of elections to allow voters the option of voting by mail.
This was a great idea and he deserved credit for quickly and decisively developing that work-around option.
There were snafus, however, on primary day. The timetable was very tight; many voters did not receive their ballot until too late and some had to vote in-person, precisely the situation they were hoping to avoid.
But larger problems developed. Thousands of ballots were rejected on technicalities, like failing to properly sign or date the ballot envelope or including additional markings on the ballot. Some yet-to-be determined number of ballots received by election administrators were invalidated because they were not postmarked.
Under state law, ballots obtained through the mail must be postmarked by a certain date. In this case, the governor’s order did not change that aspect of the law.
Return mail that is postage-paid, like a ballot, is generally not postmarked — the mark is used to make sure a stamp isn’t re-used, but since there’s no stamp, the postal service doesn’t need to mark it. Postal service employees are instructed to postmark ballots so that they can comply with the state rules. Still, sometimes a it doesn’t happen that way. As a result, in some closely contested primaries, many ballots are being tossed out because they lack a postmark.
Of course, a more deliberative process may have identified that weakness prior to primary day. And, of course, a deliberative process may have never acted in the first place. But a deliberative process, one conducted in public, is the best way to ensure that laws are done correctly. That’s the wisdom of our system.
Lawmakers return to Albany this week. It’s a good time for the deliberative process to kick in – not only to ensure that all votes cast on time during the primary are counted, but to ensure that state laws going forward do all they can to protect not only health of voters, but the health of our democracy as well.
Blair Horner is executive director of the New York Public Interest Research Group.
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