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.

Sunday Thoughts:  What to expect for the June elections and changes in absentee voting in New York

This week Governor Cuomo made more changes to Election Law for the June 23^rd primary elections. The last two months have been a whirlwind for election officials as we have tried to chart a path forward during the COVID-19 health crisis.  I think it is helpful to review the major changes that have happened:

·       Designating petition time period was cut from 38 days to 25 days the amount of signatures needed to get on the ballot reduced to 30% of original amount.

·       Independent nominating petitions was suspended and not yet rescheduled

·       Opportunity to Ballot petitions were cancelled in their entirety for the 2020

·       The Presidential primaries and special elections first were postponed to June 23^rd then cancelled in its entirety (though the presidential cancellation is now part of two lawsuits).

·       Village elections originally scheduled in March and June are now rescheduled for September 15^th.

·       Caucus for Town elections postponed until at least June 1 or later.

·       School elections moved from May 19^th to June 9^th and mandated to be all mail balloting.

·       Applications for absentee ballots were expanded to allow for temporary illness for the COVID-19 crisis making them near universally available for the June 23^rd primary.

·       All Applications on file for the now cancelled April elections will carry forward to the June 23^rd elections if applicable.

·       Applications can now be made by email and phone as opposed to just mail and in person in the past.

·       Applications will now be mailed to every active and inactive voter in the state with postage paid return envelopes that are eligible to vote in the June 23rd primaries.

·       Once an absentee application is received the local Board of Election will send an absentee ballot with a postage paid return envelope as well.

·       Boards of Elections will be mandated to have Ballot Marking Devices (BMD) at their facilities to allow for those that have disabilities to participate in the absentee ballot program.

That is a lot of changes for one year, let alone the last 45 days.  The most immediately noticeable is the cancellation of the Primary and special elections the voters.  The Presidential Primary is the subject of two different lawsuits and while it is in litigation I will not be commenting on those until the cases are resolved. However the changes with perhaps the most long term consequences are the ones to absentee balloting.  Activists and election officials have been calling for reforms to this part of election law for a while.  

Some though still wonder why New York, like other states, have not moved to all mail balloting for all elections.  Unlike other states we have a prohibition against this in our NYS constitution. The constitution states you need a reason to vote absentee.  This means you must declare that reason in the form of a request.  In fact New York is looking to change this through our constitutional amendment process.  When Democrats took over the New York State legislature in January of 2019 one of the first laws they passed was a constitutional amendment change to allow for “No Excuse” voting which could potentially lead to mail in balloting.  Unfortunately the amendment process for the NYS constitution is long and arduous.  A bill must be passed by two differently elected legislatures and then voted on by the entire state.  The earliest this can be accomplished is in 2021.  

With these restrictions in place it was impossible for New York to enact an all-mail balloting process for this year’s elections.  In fact even the mere mention of it was enough for the State GOP chair to call emergency meetings and threaten lawsuits.  As we see the nationwide GOP tactic has been to oppose every election reform that expands the ballot to allow for increase participation.  With an election less than two months away the best Governor Cuomo could do is expand the absentee process.  It should be noted that the School elections now scheduled for June 9^th is being mandated to pull off all mail balloting. The reason this can happen is that School districts run their elections and are not subject to the restrictions in the NYS constitution.

The absentee expansion for June will start this week.  By the end of the week the first wave of absentee ballots will start to be placed in the mail.  This will go to military and federal voters and any applications on file and processed by County Boards of Elections.  Also this week or early next voters who have not yet applied will receive an application in the mail with a postage paid return envelope.  If you don’t receive either an application or absentee ballot in the mail by May 18^th you should contact your Board of Elections to request one.  The application can be emailed, faxed, or returned via US mail.  Important to note if you email the application back it can’t be used for the November election, only the June primary.

Applications must be postmarked by June 16^th to guarantee the Board of Election will mail out a ballot to you.  However you should not wait to send your application in.  Boards need to process your application and mail out a ballot to you. Once you get the ballot you need to postmark your ballot by June 22^nd or you can drop it off at your local Board of Elections.  It can also be dropped off at a polling site on Election Day June 23^rd. Again do not wait.  Fill out your ballot, mail it in right away.  

There will be Election Day voting on June 23^rd and Early Voting on June 18^th. If you decide you want to vote in person you can do so.  Boards of Election do not canvass absentee ballots until after Election Day.  We will pull voter history for voters who vote on Election Day and remove your absentee ballot from the canvass.  The increase in absentees may mean that we won’t know who won races until 7 to 14 days after Election Day.  It will be important for media, candidates, and voters to be aware of this change.

Lastly it is important to remember these changes are only in effect for the June 23^rd primary. The legislature should act to codify these changes for the November primary as well.  We can evaluate how these changes work to increase turnout and which of these changes needs tweaks before the fall elections.  These changes will help voters vote safely for the June 23^rd elections but there is no reason to believe the COVID crisis will abate in the fall.  We should look to use these changes to increase voter access for June and November.  

2020 has already seen massive changes to the political landscape of New York without one election actually being held.  The COVID crisis has made us think on the fly about how to hold elections, delay elections, and in some cases whether to hold them at all.  The crisis has also shined a light on the inadequacies of our New York Electoral system and how hard it is to change it.  We muse that this crisis is going to change things in our society and in terms of elections I hope it changes the assumptions about how easy it is to run them and people realize that we can’t put off electoral reform year after year.

This year the Covid Crisis has already forced us to move our April 28th Presidential Primary and Special elections to June 23rd, postpone the March 18th Village elections and May 19th School elections to a date yet to be determined, redesign the absentee ballot procedures for June, and rethink where we can hold elections.  Now comes word this week that the special elections scheduled for June 23rd are cancelled, and it is possible the Presidential primary will be cancelled after a meeting of the State Board tomorrow.

It is rightful to be concerned about these changes and the effect it will have on the New York electoral system.  In light of our national assault on Democracy through gerrymandering and restrictive voting regulations used to give partisan advantage, these changes can be seen as worrisome signs.  Fears about what this could mean for the November elections are only natural.

However we only need to look at the Wisconsin primary on April 7th to see what happens when officials ignore the dangers and push through with elections without adjusting.  The Wisconsin GOP over ruled the Governor who wanted to delay the election in hopes of using the Pandemic to suppress turnout and win a WI Supreme Court seat.  They also went to the Supreme Court to limit absentee voting.  Voters had to stand in long lines as polling places were closed due to lack of inspectors.  The Gambit didn’t work.  Voters turned out and the results at the ballot box, with the Democrat winning by substantial numbers, should be seen as a warning to those who try to limit democracy.  At what cost though.  BY last count dozens of new COVID infections have been traced to the April 7th elections.  

New York was correct in delaying elections and is further doing the right thing by allowing an expanded absentee balloting.  The New York Constitution does not allow straight vote by mail, so Governor Cuomo is doing the next best thing.   He has by executive order allowed anyone to apply for an absentee by using the “temporary illness” excuse because of the COVID crisis.  He further made it easier to apply by allowing for email applications.  Now on Friday he announced that Board of Elections must mail an application to every voter with postage paid returns.  You still need to apply, a ballot won’t, and can’t, be automatically mailed.  And if you don’t want to wait, in Onondaga County you can go to onvote.net and apply now.  Soon a phone option will be launched as well. 

Activists and some voters will take issue with the cancellation of state and local special elections and the possible elimination of the Presidential Primary.  Certainly cancelling elections is a concern and it would be reflexive to just say we should hold these elections anyway.  Unfortunately the answer is, as usual, not that simple.   The Special Election, Presidential Primary, and local primaries are three different elections under NYS law.  This means separate ballots and separate check ins for each election.  This would double the amount of inspectors and possibly triple the amount of mailing costs for local boards.  Also there could be voter confusion both at home and at the polling place by voters and inspectors alike.  Part of the OVID crisis has prevented Boards from holding training of inspectors and we would be faced with doing this on the fly on Election Day itself.  This confusion in and of itself could be seen as a form of vote suppression.

Normally I would say damn the costs and confusion and give a lecture on the need for investment in Democracy.  However the Specials and Presidential Primary have devolved into what can best be described as inconsequential elections.  The winners of the special elections would not take office now until July, traditionally the session for the New York legislature ends in June.  Holding the already scheduled elections in November will mean a representative will be in place for the start of session next year.  There are also staff in all of these seats to address constituent concerns and those staff continue.  Not ideal, but definitely not something that is earth shattering.

The Presidential Primary may come to an end as well on Monday.  State Board Commissioners were given the right to determine whether a candidacy was active and drop them off the ballot.  At the time this was passed there were scheduled to have 11 candidates on the NY Primary ballot, 9 of them had already dropped out of the race and endorsed another candidate.  The other 2, Biden and Sanders, were publicly giving every indication they would stay on well past June.  This was a way to simplify the ballot for voters and make it easier for Boards of Elections.  However now Bernie Sanders has also dropped out of the race and endorsed Biden.  So now the State Board Commissioners could remove him from the ballot ending the primary.

Sanders supporters will point to Sanders wish that his name remain on the ballot so he can rack up delegates for the party convention.  The question remains does the State of New York have a vested interest in spending public dollars on a party squabble?  I am an advocate of primaries over caucuses because I believe the State of New York has a vested interest in determining the candidate that appears on the General Election Ballot is truly the representative of the citizens’ wishes.  However that is not at question here.  Keeping the Presidential Primary will double the amount of absentee costs for every county, and close to 1/3 of the counties will have to open up polling places on Election Day (when they otherwise wouldn’t have to)..  It may be better to allow the Biden and Sanders camps along with the New York State Democratic Party make alternate plans on delegate selection.  

Onondaga County would have to open up anyway in June so I take no personal position, but simple solutions on both sides of this question overlook the complexities involved.  These complexities are made more problematic by New York’s still antiquated election laws.  So much progress was made last year but many things like Automatic Voter Registration, absentee reform, ballot access, and minor election law changes were left on the table.  When the legislative session comes resumes voting reforms should once again take center stage so that when the next crisis hits our Democracy can be more nimble and put the needs of the voters forward.  We have a great deal of work to get to a more accessible modern voting system.  Hopefully we will learn from these tribulations and build a better New York together.

Dustin Czarny

NYS Elections Commissioner Association Democratic Caucus Chair

Onondaga County Elections Commissioner (D)