Judge Strikes Down Controversial Clause in NY’s New Election Laws

A person casts their voting ballot during the June Primary Election at Brooklyn Museum in N.Y. on June 28, 2022. Michael M. Santiago/Getty Images

A New York state court judge on Friday struck down one controversial sentence in New York’s new election laws.

New York Supreme Court Justice Dianne Freestone, in a 28-page decision, said the sentence deprived the rights of courts to rule on disputed ballots.

The last sentence in Article 9-209(8)e of the 2022 Election Law—which has been amended recently by the Democrat-led state legislature—says: “In no event may a court order a ballot that has been counted to be uncounted.”

Freestone said the clause violated the Constitution and abandoned a long-time bipartisan tradition.

“[It] abrogates both the right of an individual to seek judicial intervention of a contested ‘qualified’ ballot before it is opened and counted, and the right of the Court to judicially review same prior to canvassing,” she wrote.

The justice also said that the amendment de facto suspended a long-standing practice: that a questioned ballot should be preserved for three days while awaiting judicial review.

The Epoch Times has reached out to the New York State Board of Elections for comment.

Jennifer Wilson, the spokeswoman of the state election authority, told the State of Politics that their office is still reviewing the ruling to share its view on the impact to the upcoming election.

Nick Langworthy, chairman of the New York Republican Party, applauded the ruling.

“Today is another good day for free and fair elections in New York,” he said in a statement. “The Constitution has been on our side and we will continue to fight to uphold the will of the voters and to ensure honest elections in New York.”

The ruling is likely to be challenged in a higher court.

Timing of Ballot Contesting Changed

In New York election law, preservation and review of ballots are allowed in at least several circumstances, including election result audits and ballot contests.

The law clearly states that disputed ballots should be preserved for judicial review.

“The supreme court, by a justice within the judicial district, or the county court, by a county judge within his county, may direct the examination by any candidate or his agent of any ballot or voting machine upon which his name appeared, and the preservation of any ballots in view of a prospective contest, upon such conditions as may be proper,” reads Article 16-112 of the election law.

However, the disputed clause could, in its current wording, be argued to suggest that ballots can be challenged only before canvassing.

The timing of the ballot contest and accompanying judicial review could be re-extended to beyond ballot tabulation—as has long been standard election procedure until the changes slipped through with the new law—if the state appeal court upholds the ruling.

Extending Absentee Voting Provisions Is ‘Orwellian’

The Republicans who challenged the election law in this case have also asked the court to rule against the state’s new expanded absentee voting provisions.

During the COVID-19 pandemic, the Democrat-majority state legislature expanded absentee voting access in August 2020 to allow any voter who is afraid of the risk of “contracting or spreading a disease” to use absentee voting.

Before the law was amended, voters could justify the usage of absentee ballots only because of actual illness.

In January this year, the legislature extended the expiration date of the amendment to the end of 2022, which covers the Nov. 8 midterm elections.

Justice Freestone said she couldn’t overturn the rule because the issue had already been ruled on by the state appellate courts and is being appealed in the state’s appellate courts and the highest court.

However, she said the expanded absentee voting was against the will of the New York people and gave rise to opportunities for fraud, coercion, and other types of mischief.

“Despite the express will of the People against universal absentee voting by the defeat of Proposal 4 in 2021, the Legislature appears poised to continue the expanded absentee voting provisions of New York State Election Law forward ab infinito in an Orwellian perpetual state of health emergency and cloaked in the veneer of ‘voter enfranchisement,’” she concluded.