The civil action seeks a declaratory judgment that the law authorizing absentee voting on the basis of fear of spreading the coronavirus violates the state Constitution
Brian Lee, Litigation reporter | Law.com | Oct. 5, 2022
More than a dozen attorneys were in a Saratoga County state trial court Wednesday to present a myriad of perspectives on the New York State Republican Committee’s lawsuit that argues a new law regarding the opening and tallying of absentee ballots within four days of receipt, for their inclusion in Election Night results, is unconstitutional. The civil action seeks a declaratory judgment that the law authorizing absentee voting on the basis of fear of spreading the corona virus violates the state Constitution.
Attorney John Ciampoli of Messina Perillo & Hill told the judge the law violates the Constitution because the process removes absentee ballots from judicial review.
The judge presiding over the case, state Supreme Court Justice Dianne Freestone, is a former first vice president of the SaratogaCounty Republican Committee, one of the plaintiffs.
Freestone, who’s “fully aware of the gravity of the issues before the court,” is accommodating an expedited timeline in the face of the Nov. 8 general election.
Respondents’ papers and briefs are to be submitted by Friday, with petitioners’ answers due Tuesday morning. The case reconvenes on Oct. 12.
Gov. Kathy Hochul signed the new pandemic-related law in January, and it was enacted in April.
In court Wednesday, Ciampoli asked the judge to preserve the status quo and order that the ballots be preserved in their envelope for the upcoming election.
“This would not upset the election process at all. But rather, we’ve had absentee ballots in New York state since approximately 1927. So it would be restoring the process to what it is pending the hearing and the determination of this court,” Ciampoli said, adding that by the end of the week, county boards “might be ready to burst envelopes.”
Ciampoli said it’s possible that scanned absentee ballots could be the product of a fraudulent scheme by simply reinserting them in their envelopes and recounting them.
Brian Quail, the attorney for the New York State Board of Elections Democratic commissioner, said the plaintiffs hadn’t submitted any evidence that anyone is about to be or was injured by the new process.
He noted that since the law was enacted, there had been two state primary elections and several special elections that hadn’t resulted in “the sky falling and terrible things happening.”
Quail said the burden is on the plaintiffs to demonstrate a necessity to prevent their injury, likelihood of success on the merits, irreparable harm and a balance with equities in their favor, none of which they had shown.
Quail said more than 165,000 absentee ballots had already been mailed, and 2,000 absentee ballots returned, of which a substantial portion have already been prepared for canvassing. The petitioners hadn’t shown that any of those ballots were cast fraudulently, he argued.
Quail also pointed out that the petitioners knew about the law in December and could have filed the lawsuit more timely, but filed it now to create disruption to the orderly and unfolding election system.
Quail also argued that the law spells out a process by which an absentee ballot application has to be approved on a bipartisan basis by a local board of election, and the applicant is subject to penalties of perjury.
Ciampoli countered that the law precludes a poll watcher from objecting to an improperly cast ballot.
“I could show up at a board of election with someone in handcuffs who comes and says, ‘Commissioners, I have falsified the signatures on the ballot envelopes on the applications. They are forgeries.’ And the commissioners would look at me and say, ‘We’re an administrative agency; we can’t entertain that.’ ”
Ciampoli also addressed why the lawsuit was filed so close to the general election. He said Republican state Senate candidate Rich Amedure did not have a primary election. As a consequence, he hadn’t been harmed until now, the attorney said.
Lauren Eversely, assistant attorney general representing the governor, filed a motion to dismiss the case and a memorandum of law opposing a preliminary injunction.
Eversely said the petitioners didn’t cite any specific board’s decision to canvass or not canvass a specific ballot. Nor are there any county board of elections listed as respondents in the case.
Republican Assembly and Senate leadership were named as respondents only as a matter of process, and their attorneys indicated they wanted to switch sides to argue on behalf of the plaintiffs.
Attorney Christopher Massaroni, who represents Assembly Speaker Carl Heastie, D-Bronx, said he had only been retained as special counsel within 24 hours prior to the hearing. He requested ”a fair and reasonable time to put in written papers.”
Massaroni said never in his career had he ever “seen such an important issue before a court where there is a request for immediate relief on such thin papers—not a single signed affidavit from any of the petitioners; not a piece of evidence; not a memorandum of law; not a legal argument comparing the statute to the constitutional provisions that are being challenged and no true legal analysis of why any provision of the statute is unconstitutional.”
Two legal observers questioned the lawsuit.
“I think that this is part of a strategy to create doubt about elections that are perfectly well-run, to undermine and suppress votes that would be cast more easily by absentee ballot,” said New York City elections lawyer Sarah Steiner. “This law has been in effect for three elections now.”
Steiner explained that she believes there’s a “multi-state strategy that involves both cases and FOIL requests all over the country, designed to suck away the time of the boards of elections from running the election.”
It’s had the result of eroding voter confidence, she said.
“I think that all of the actions taken to undermine elections, both in New York and around the country, are causing people to not turn out to vote as much as they used to.”
Steiner indicated the case wouldn’t survive an appeal, as she said she “wouldn’t be shocked” to see the petitioner’s case succeed in the trial court, given Freestone’s prior involvement with the local GOP committee.
“I don’t think that she should be hearing this case, regardless of her party,” Steiner said. “I think that a judge who was so closely associated with one of the plaintiffs should recuse herself in any situation.
”Stroock elections attorney Jerry Goldfeder said the U.S. Supreme Court has consistently ruled that election laws should not be altered at the last minute.
“On this ground alone, the case should be dismissed,” Goldfeder said.
