New York Election Laws: Better than Georgia’s but not Foolproof
By: Keyawna Griffith
September 20, 2021
New York and Georgia’s election laws have been pitted against each other as two sets of legislation on opposite ends of the democracy spectrum symbolizing the ease of the voting process. After authorizing automatic voter registration for certain individuals, providing online voter registration and preregistration for those who are at least sixteen years old, and enacting permanent early voting, New York has been hailed as a good example of voter access.1Brad Karp and Robert Atkins, Georgia vs. New York on Voting Rights: No Contest, New York State Bar Association (May 14, 2021), https://nysba.org/georgia-vs-new-york-on-voting-rights-no-contest/; Cheyenne Burke, New York Continues to Reform Voting Laws, New York State Bar Association (Apr. 27, 2021), https://nysba.org/new-york-continues-to-reform-voting-laws/.
But see Henry Olsen, Opinion: No, Georgia’s new voting law is not a return to Jim Crow, Wash. Post (Mar. 30, 2021), https://www.washingtonpost.com/opinions/2021/03/30/no-georgias-new-voting-law-is-not-return-jim-crow/. On the contrast, Georgia has been cited as an example of voter restriction for requiring state-issued identification to request an absentee ballot, banning portable or mobile voting facilities, and limiting access to drop boxes.2Karp & Atkins, supra note 1. But see Henry Olsen, supra note 1. Despite the differences between each state’s election reform efforts, New York’s laws still leave voters vulnerable to some of the same voter suppression tactics as seen in Georgia—namely, the frivolous challenge.
The frivolous challenge came to the forefront in Georgia during the weeks leading up to the January 2021 United States Senate runoff election in Majority Forward v. Ben Hill County Board of Elections, et al.3512 F. Supp. 3d 1354 (M.D. Ga. 2021). In that case, a federal district court in the Middle District of Georgia blocked a challenge that claimed 4,033 registered voters in Muscogee County were not eligible to participate in the runoff elections. Doing so protected the voting rights of many properly registered voters who should not have been challenged in the first place.4 See id. at 1370-72, 1374.
Majority Forward shows how a single challenge can significantly impact thousands of voters at a critical time during the election season. After receiving a letter challenging the 4,033 voters, the Muscogee County Board of Elections unanimously found probable cause to sustain the challenge about three weeks before the runoff elections and sent letters to the targeted voters, explaining that they had to prove their eligibility before their ballot would count.5Id. at 1361-62. The targeted voters were not informed about how to resolve the challenge, unable to rebut it due to lack of resources, and unsure whether they would still attempt to vote.6Id. at 1363-66. However, the district court enjoined the challenge after finding that at least some targeted voters were properly registered such that the Board lacked probable cause required to sustain the entire challenge under Georgia law.7Id. at 1370-71, 1375.
While a frivolous challenge against thousands of voters may seem predictable in a state like Georgia, New York’s election laws can just as easily be used to block eligible voters from participating in elections. New York law does not specify a burden of proof by which county election boards must sustain a challenge8N.Y. Elec. Law §§ 5-218, 5-220 (McKinney 2021); see also §§ 8-500 to 8-510.—unlike Georgia, which at least requires county election boards to find probable cause.9O.C.G.A. § 21-2-230(b). Instead, Section 6210.12 in the appendix of New York Election Law requires county boards to adopt procedures for the challenge process, allowing counties to vary as to how much protection they provide voters upfront. Additionally, New York Election Law Section 5-220 provides that once the board of elections receives an affidavit challenging a voter’s qualifications, the board must conduct an investigation to determine whether the voter should remain registered.10N.Y. Elec. Law § 5-220(1) (McKinney 2021). If the board cannot complete its investigation or make a decision before the next election, it places the voter’s name on “a challenge list as a person to be challenged when voting.”11N.Y. Elec. Law § 5-220(2) (McKinney 2021).
When a voter is challenged at the polls, they must take an oath given by an inspector under which they affirm to truthfully answer questions regarding their qualifications as a voter.12N.Y. Elec. Law § 8-504(1) (McKinney 2021). If the voter refuses to take the oath, they will not be allowed to vote.13 Id. The voter’s answers are then sent to the board, which must determine whether it believes the applicant is qualified and the challenge should be withdrawn.14N.Y. Elec. Law § 8-504(3) (McKinney 2021).If the board determines that the voter’s answers are deficient, the inspector must administer another oath to the voter.15Id. The voter will be allowed to vote only after taking the additional oath and any other oaths administered.16 N.Y. Elec. Law § 8-504(6) (McKinney 2021).Taking an oath may seem like a harmless remedy to a challenge. But as the Middle District of Georgia found in Majority Forward, a challenge to a voters’ eligibility alone can “confuse and intimidate voters by acting as a hurdle they must cross before they can be assured that their vote will count.”17Majority Forward, 512 F. Supp. 3d at 1372. What is more, the voter is left with the burden of reconciling a sustained challenge through a judicial review process, even if the challenge is frivolous.18N.Y. Elec. Law § 16-108 (McKinney 2021); see Mondello v. Nassau Cnty. Bd. of Elecs., 6 A.D.3d 18, 22 (N.Y. App. Div. 2004) (citations omitted).
Reconciling challenges can be even more difficult if the voter casts an absentee ballot. Any inspector, watcher, or registered voter properly in the respective polling place can challenge an absentee ballot.19N.Y. Elec. Law § 8-506(1) (McKinney 2021). If the board sustains the challenge before the absentee ballot is removed from its envelope, the reasoning must be noted and endorsed by an inspector on the unopened envelope returned to the board.20N.Y. Elec. Law § 8-506(2) (McKinney 2021). If the board sustains the challenge after the ballot is removed from the envelope but before it is deposited in the ballot box, the ballot must be rejected without being unfolded or inspected and the reasoning must be noted and endorsed by an inspector on the envelope.21Id. As mentioned above, the voter may attempt to reconcile the challenge through a judicial review process. But such process is undoubtedly time consuming and can be impractical for a voter who cannot be physically present or lacks the resources to virtually attend a proceeding to reconcile the challenge as some targeted voters in Majority Forward experienced. Moreover, the judicial review process can be disrupted if the challenged absentee ballots are not properly preserved, as was the case in Tenney v. Oswego County Board of Elections.2270 Misc.3d 680 (N.Y. Sup. Ct. 2020) (Oswego County).
Claudia Tenney, the Republican congressional candidate for New York’s 22nd district, initiated an action in the Oswego County’s Supreme Court against the Oswego, Oneida, Madison, Broome, Tioga, Herkimer, and Chenango county boards of elections, New York State Board of Elections, and two individuals to preserve hundreds of challenged ballot envelopes for judicial review.23Id. at 680, 681, 683, 688 (N.Y. Sup. Ct. 2020) (noting absentee ballots predominated the 60,000 ballots that had not been canvassed or counted and Broome County had not recorded over 300 candidate challenges to rulings on the validity of absentee ballots). However, the court found that judicial review was “frustrated” because the county election boards did not properly note the nature and outcome of the challenges on the face of the ballots, rule on candidates’ objections to the ballots, or record the nature of the challenged ballots.24Id. at 687–88. Additionally, the Chenango County Board did not send cure notices for at least twelve absentee ballots even though those ballots apparently had curable defects requiring the Board to give the voter notice under Election Law Section 9-209(3) and a chance to cure.25Id. at 688. The court found that these “failures” prejudiced the candidates rights to “meaningful judicial review of the Boards’ actions on the challenged ballots.”26Id. at 691. Tenney illustrates that the New York Election Laws require little effort from the challenger to stall a voter’s participation but a burdensome effort from the challenged voter to prove their eligibility through a potentially complex procedure. These conditions create an unnecessarily high risk of preventing properly registered voters from voting due to confusion, intimidation, and a prolonged judicial review process.
Even a challenge under Section 5-220 that seems valid on its face could too easily prevent properly eligible voters from participating in elections. Take Maas v. Gaebel as an example.27129 A.D.3d 178 (3d Dep’t 2015). There, the Vice-Chair of the Sullivan County Republican Committee challenged the eligibility of twenty-nine registered voters, sixteen of whom were shareholders of apartments in the Lake Huntington Summer Community (the Lake Huntington voters).28Maas v. Gaebel, 129 A.D.3d 178, 179 (N.Y. App. Div. 2015). These voters had already cast absentee ballots in the November 2013 general election.29Id. at 179–80. But the Vice-Chair claimed that none of the twenty-nine voters were residents of the Town of Cochecton, Sullivan County for purposes of the election.30Id. at 179. Because the Commissioners of the Board of Elections were unable to agree whether the challenge should be granted, the Board ruled that the voters’ registrations would stand.31 Id. The Vice-Chair then challenged the Board’s decision by seeking a judicial order that would retroactively invalidate the voters’ ballots cast in the general election and remove their names from the Town’s registration rolls.32Id. at 179–80.
The New York Supreme Court partially granted the Vice-Chair’s request, concluding in relevant part that the Lake Huntington voters were not residents of the Town for purposes of voting and invalidated their previously cast ballots.33 Id. at 180. The Lake Huntington voters appealed to the Supreme Court Appellate Division, which reversed after finding that the Lake Huntington voters were, in fact, legitimate residents for voting purposes.34Id. at 183. Notably, the Appellate Division held that the Lake Huntington voters had been improperly disenfranchised by having their ballots invalidated and names stricken from the voter registry35Id. at 183–84.—all of which occurred as a result of a challenge under § 5-220.
While the Lake Huntington voters’ ballots ultimately counted for the general election, they almost lost their right to vote and had to endure a lengthy litigation process to uphold it. Given the serious burden and potential consequences of a frivolous eligibility challenge, one would expect a state like New York, which aims to increase voter access, to have a stricter standard. Yet, it is easier to successfully challenge a legitimate voter in New York than in Georgia.
New York can change this paradoxical reality by amending Section 5-220 after Arizona and Washington’s eligibility challenge provisions. Arizona and Washington require a challenger to prove that a person is ineligible to vote by clear and convincing evidence before the challenge can be sustained.36Ariz. Rev. Stat. Ann § 16-121.01; Wash. Rev. Code § 29A.08.840(1-4). The standard requires the challenger to present evidence that makes it highly probable that the voter is ineligible.37Currie v. McTague, 83 A.D.3d 1184, 1185 (N.Y. App. Div. 2011) (quoting Krol v. Eckman, 256 A.D.2d 945, 947 (N.Y. App. Div. 1998)). In other words, the challenger must be reasonably certain that the voter is, in fact, unqualified.38See Kihl v. Pfeffer, 47 A.D.3d 154, 164 (N.Y. App. Div. 2007) (citations omitted) (noting that every appellate division interprets “reasonable certainty” as being equivalent to the clear and convincing evidence standard). Moreover, New York should establish a clear and convincing evidence standard in Section 8-502 to ensure the burden of proof applies to challenges in every county. As the New York Court of Appeals has noted, “[t]he right to vote is one of the most important and cherished constitutional rights.”39Leaks v. Bd. of Elections, 447 N.E.2d 42, 43 (N.Y. 1983). Therefore, New York should require the highest practical level of proof before allowing that right to be questioned.
Keyawna Griffith, J.D. Class of 2018, University of Virginia School of Law
Suggested Citation: Keyawna Griffith, New York Election Laws: Better than Georgia’s but not Foolproof, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2021).