The COVID-19 scare has reshaped how we think of just about everything in normal life. Elections are of course part of this re-imagining of American life. Large gatherings with at-risk elderly poll workers is a nightmare scenario for the current pandemic. We have had states postpone elections hoping the pandemic will abate later this summer. The Wisconsin election of early April and the dozens of COVID-19 cases and long lines of voters because of lack of poll workers is the other end of the spectrum.
Many states are starting to expand their vote by mail options. This, as all things with elections, has become hyper-partisan, and in my opinion needlessly so. Many primaries such as Ohio and Maryland have moved to all mail in options. This week California became the latest state to take the jump into vote by mail. Governor Gavin Newsome has announced that every voter will receive a ballot in the mail for the fall elections joining Colorado and Oregon to take the jump to full Vote by Mail.
The most frequently asked question I get is why New York can’t also take the plunge into Vote by Mail for the primary and fall elections. The simple answer is Vote by Mail in its purest form, where ballots are mailed to all voters, may be prohibited by our NYS constitution. The constitution requires an excuse to vote by absentee, the only mail voting option available under current NYS law. There is some disagreement over whether there is authority to actually send ballots to voters without them applying for an absentee and declaring an excuse. In fact when Governor Cuomo was rumored to be considering issuing an executive order NYS GOP chair Nick Langworthy had a twitter meltdown threatening to sue.
Governor Cuomo has done the next best thing. He has loosened up the excuse requirement allowing for COVID-19 to be a covered excuse under temporary illness. He has also ordered Boards of Elections to mail an absentee application to every eligible voter for the June primary election with a postage paid return envelope. Furthermore he has allowed all voters to apply by email and phone in addition to the mail and fax that was previously allowed. He also ordered that all absentee ballots sent out must have postage paid return envelopes. It is important to note these changes are only for the June primary, mainly because it was done with Executive Order. The legislature needs to act to codify these orders so it can be implemented for the November election.
Voters eligible for the primary will either get their ballots or applications starting this week. However looking towards the future, what will it take for New York to make vote by mail a reality for its citizens. Unfortunately this is not something that will be a quick process. Most likely the first year where Vote By mail can be a reality is 2022. However to be ready to do it, we need to do the following changes:
Change NYS Constitution to remove the excuse for absentees
The first step towards Vote by mail has already been done. In fact it was done in January of 2019. On the first day of session NYS Democrats, having newly took over the state legislature, enacted long held up voting reforms. This included Early Voting, a unified primary, universal transfers of registrations, and constitutional amendments to remove the excuse from absentee voting and allow for same-day registration. It should be noted that the GOP Senate for years wanted no excuse absentees as an alternative for Early Voting, but never actually passed an amendment and then many voted against it when it was finally passed by the Democrats.
The constitutional amendment process is long and arduous. First an amendment must be passed in two separately elected legislature. It was passed in 2019 and if Democrats retain control of the Senate and Assembly it will most likely be passed first day of session in 2021. Then it will be put before the voters of the state by referendum in the November election in 2021. Finally if it is passed enabling legislation will be passed in 2022. That enabling legislation can include a mandate to skip the application process all together and send ballots directly to all registered voters. This is how it happens but other legislative changes need to be taken before then as well.
Update our Voter Registration system with Online, Automatic, and Same Day registration.
Part of the issue with vote by mail is New York’s voter registration system is just not ready to mail ballots to all of our voters. We currently have 1.2 million voters in “Inactive” status in New York. The most common reason for this is because we received a piece of mail back from the annual mail check cards that they no longer live in the address on file. We must reduce that number by upgrading our registration system. Some upgrades have happened. In 2016 the DMV instituted an online registration system through the MY DMV system and this is where most of our registration forms now come from. In 2019 online voter registration was passed which will allow Boards of Elections to institute a similar systems by 2021. In addition the constitutional amendment for Same Day registration was passed in 2019 and follows the same constitutional timeline as No fault absentees.
One other registration fix the legislature can pass this year is Automatic Voter Registration. This popular piece of legislation will automatically update voter rolls when people come of age, move, or die. The New York State Senate already passed a version of it this year and we are awaiting the assembly to do it. Passing it now will allow the State Board of Elections to pair it with the development of the online voter registration system it is developing and have it in place for the start of any VBM system.
Change the way we count and when we count Absentee votes.
There is a myth that we only count absentee ballots when a race is close. That is simply not true. We count every ballot every year in every race. However absentee ballots are usually not canvassed until 7-14 days after Election Day. This is for two reasons: Ballots have until 7 days after Election Day to arrive at the BOE offices (as long as they are postmarked the day before Election Day) and Voters can choose to vote in person on Election Day (or during Early Voting) and that will pull replace their absentee ballot. In fact that is what is required by law if you are able to vote on Election Day. This means Boards of Elections cannot even begin to start to count ballots until days after the election when voter history can be properly addressed as well as ballots received. With a larger percentage of absentees being cast, results on Election Day will become less reliable. Furthermore we give more scrutiny to absentee ballots. Ballots can be discarded if not postmarked on time as well as marks on the ballot or failure to file out the signature portion and a voter will have no opportunity to correct any default nor any notice that the ballot was rejected.
Once the excuse portion of the constitution is changed we can then alter the absentee ballots that make that ballot cast as soon as it is processed and received by the Board of Elections. This will allow Boards to canvass absentees as they come in. Like Early Voting ballots the results will not be tabulated until Election Day. This will make the results reported on Election Day more complete. We will also be able to canvass ballots without needless challenges from campaigns in close races as the results will be reported on Election Day eliminating the temptation to challenge every ballot of the opposite party post-Election Day. Voters could also get a chance to cure any deficient ballots if they are ruled on daily by BOE officials and notices sent. Finally we should move the postmark date to Election Day instead of the day before. This will eliminate hosts of ballots that are postmarked on Election Day or not postmarked at all but received by the Board before Election Day.
Expand Early Voting options and use them as designated ballot drop off points.
While Vote by Mail will reduce the need for in person voting options on Election Day and Early Voting it won’t eliminate it. We will still need those options for persons with disabilities who cannot vote on a paper ballot. We also will have a greater need for points to drop off absentee/vote by mail ballots. Many voters would refer to vote at home but drop off the ballots at designated location rather than risk ballots not being delivered or delivered late. Also expanding Early Voting sites will reduce the Election Day populace, which will allow Election Boards to along with Vote by mail, eliminate staff and sites on Election Day and reduce costs. The earlier we get people to vote either by VBM or Early Voting the quicker we can rectify problems and help voters cast their vote properly and securely.
The path to Vote by Mail in New York requires a great deal of legislation before it can be a viable reality. The legislature can start to take some of these steps this year to expand absentees and start working toward a goal of a mostly vote by mail system by the 2022 midterms.
Dustin M. Czarny 