New York state’s Democrat Gov. Kathy Hochul has moved to dismiss an appeal filed by GOP Congresswoman Elise Stefanik in Albany’s Appellate Division of the Supreme Court of the State of New York, which challenges the constitutionality of allowing any registered voter in the state to cast an absentee ballot.
Assistant Solicitor General Sarah Rosenbluth filed the motion to dismiss Ms. Stefanik’s appeal on Feb. 8 for submission to the Third Department this week on Feb. 20.
“Now that Supreme Court has entered final judgment in favor of defendants, it would make little sense for this court to consider the question presented in this appeal, namely, whether plaintiffs are entitled to preliminary relief,” Ms. Rosenbluth wrote in her pleading.
On September 20, 2023, the day Ms. Hochul signed the Early Mail Voter Act, Ms. Stefanik filed an order to show cause in the Albany Supreme Court, challenging the law’s constitutionality under New York state’s constitution, along with a motion for a preliminary injunction.
After a judge ruled that provisions in the Early Mail Voter Act were constitutional, Ms. Stefanik filed an appeal.
“We’re defending New Yorkers in court against Kathy Hochul and the left,” Republican National Committee (RNC) spokesman Gates McGavick told The Epoch Times. “If Hochul gets what she wants, then New York’s mail voting will be less secure. That’s why RNC lawyers have been fighting this in court for months.”
Ms. Stefanik’s request to halt early voting was denied just days before the special election in Congressional District 3 saw Democrat Tom Suozzi defeat Republican Mazi Pilip on Feb. 13.
Mr. Suozzi flipped former congressman George Santos’ seat back to blue.
Nassau County Board of Elections early voting data showed that out of more than 57,000 ballots cast in Nassau County during the early voting period, 42 percent were Democrats, 34 percent were Republicans and 20 percent were unaffiliated with a major party.
RNC lawyers argue in Ms. Stefanik’s brief that allowing unrestricted early voting forces the GOP to spend additional time, money, and manpower to adjust to a new electoral scheme that greatly differs from the past in-person voting model.
“For the national organizations, that means fewer resources to fulfill their missions in other states,” wrote attorney Michael Y. Hawrylchak in Ms. Stefanik’s Jan. 26 brief. “Moreover, the Mail-Voting Law will impose substantial new financial burdens on the county election boards the commissioner plaintiffs oversee, because it requires them to provide postage-paid return envelopes along with mail-in ballot applications.”
Plaintiffs include GOP Reps. Nicole Malliotakis, Nick Langworthy, and Claudia Tenney as well as former congressman Peter King, the New York Republican State Committee, the Conservative Party of New York State, the National Republican Congressional Committee, and the RNC.
The Republican plaintiffs allege that the Early Mail Voter Act violates the state constitution because it allows for absentee voting without restrictions.
“That the judge has upheld this New York law allowing early voting is a big deal,” attorney Aron Solomon told The Epoch Times. “The decision marks an important moment in the broader national conversation on voting rights and the balance between expanding access to voting and ensuring the integrity of the electoral process.”
Under New York state’s constitution, absentee voting is accepted only in the event of illness, being out of the state for a definable reason, or military service overseas.
“The fight is not early voting so much as expanding absentee ballots,” Nassau County attorney Steven R. Schlesinger told The Epoch Times. “I think the courts will eventually conclude that the state constitution provides for absentee ballots, but does not prohibit the legislature from enacting a broader early voting scheme.”
Mr. Schlesinger represents Democrat and Republican candidates in election issues.
Republicans argue that the people of New York voted against expanding absentee voting when the proposed amendment “Authorizing No-Excuse Absentee Ballot Voting” was presented as a ballot initiative in 2021. It was rejected by 55 percent of voters.
“In dark blue New York, that’s very much a resounding rejection of a liberal policy,” Mr. McGavick added. “Now, what’s happening is Kathy Hochul is trying to basically legislate by fiat and go against the will of New Yorkers by passing down bad policies just from the governor’s mansion.”
If Albany’s Appellate Division grants Ms. Hochul’s motion to dismiss, RNC lawyers plan to appeal to the state’s highest court, the New York Court of Appeals.
What’s at stake, according to attorney and former New York GOP congressman John Faso, is respect for the precedent and the state constitution.
“If the Democrats want to allow for no-excuse absentee voting, they should go back to the voters with another proposed amendment,” Mr. Faso told The Epoch Times. “It flies in the face of all of their arguments about defending democracy when the people rejected their plan in 2021 by a large margin, and now they’re back saying, ‘Never mind, we have the power to do it anyway.’”
