New York’s highest court on Thursday upheld a law that allows election boards to count mail-in ballots even when there’s some doubt about the ballot’s validity, marking a win for state Democrats.
The Court of Appeals, less than a week before the election, rejected Republicans’ claim that the law violates the state constitution, ruling unanimously that it doesn’t “violate the constitutional principles of separation of powers or of judicial review.”
The ruling affirms an August decision from an Albany appellate court.
The challenged portion of the law—among a slate of changes enacted in 2021—allows a commissioner from one party to decide to count a ballot, even when the other commissioner questions the ballot’s validity. Republicans argued that provision violates the constitutional requirement that there be equal representation of both parties during the counting of ballots, and that equal representation requires bipartisan agreement.
“We disagree,” the Court of Appeals wrote. The board of elections satisfies the equal representation requirement since it is equally divided with one Republican and one Democrat. Either board member can declare a ballot invalid or valid during both the initial and subsequent reviews.
“Thus, no single Board member has any more authority than any other member over the canvassing process, and neither party carries more sway over the process than the other,” the court wrote.
Bipartisan unanimity isn’t needed for election boards to take action, the court added, pointing to discussions dating back to the 1894 constitutional convention when the equal representation requirements were introduced.
The court also rebuffed Republicans’ arguments that the law might enable election fraud. During oral arguments earlier this month, attorneys for Republicans said “political operatives” could flag certain ballots for commissioners who could then deem them valid or invalid based on the votes inside.
The statutory scheme, the Court of Appeals said, includes “numerous safeguards” through which the courts can “address and prevent electoral fraud.” The law also allows observers to be present throughout the ballot review process, so parties can “gather evidence of fraud, in the rare instance that it may occur.”
Attorneys for Republicans and the state didn’t immediately respond to requests for comment.
Adam Fusco of Latham, NY, and DerOhannesian & DerOhannesian represented Republicans. The New York Attorney General’s office represented the state. Hacker Murphy LLP and Hodgson Russ LLP represented state Senate and Assembly Democrats, respectively.
The case is Amedure v. State of New York, N.Y., No. APL-2024-00121, 10/31/24.
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