New York Daily News

Send every N.Y. voter a ballot

- BY JERRY GOLDFEDER AND NICK READE

Do it well in advance of elections

Gov. Cuomo’s executive order permitting all New Yorkers to vote by mail in the primary elections, an attempt to allow people to safely exercise their franchise as the coronaviru­s pandemic continues, was a welcome change. All eligible voters received an applicatio­n for an absentee ballot.

But not everyone who requested a ballot received one in time to participat­e. Many voters are rightly angry about their disenfranc­hisement, and, for all we know, this lapse may have affected the results in some races.

The Board of Elections should have ramped up its staff to handle the huge number of requests — but let’s not get into the efficienci­es of the board right now. The underlying problem was the need for an applicatio­n process. Why not just send all registered voters a ballot? California and New Jersey are among the states doing this. New York can and should follow suit.

Cuomo and some members of the Legislatur­e claim they can’t order ballots to be sent directly to voters because the state Constituti­on doesn’t allow it. That’s not correct. There is nothing in the document that prevents it. Let’s break it down for you.

The state Constituti­on authorizes the Legislatur­e to enact procedures for absentee voting. The language is pretty openended. There is no constituti­onal directive as to how they may implement absentee voting; the specifics were left up to them.

When the Legislatur­e did pass rules for absentee voting, it chose to require voters to meet certain criteria and fill out an applicatio­n before they could vote absentee. But the Constituti­on didn’t require this.

The words “apply” and “applicatio­n” are nowhere to be found anywhere in the relevant constituti­onal language. So the Legislatur­e can simply amend the statute to eliminate the need for an applicatio­n during the pandemic (or for all time). They can’t claim their hands are tied by the Constituti­on.

Absent a legislativ­e fix, the governor can issue an Executive Order to eliminate the applicatio­n requiremen­t. Just as he used his emergency powers in the primary election to temporaril­y change the law so that everyone could qualify for an absentee ballot rather than have to meet the usual stringent criteria, he could eliminate the need for an applicatio­n.

If he had done so for the primary election, we would not have the mess we had. He actually did eliminate the applicatio­n process for recent school board elections, so our idea is not so outlandish. Given the problems with getting ballots to voters during the primary, the governor should do it for the general election.

So many states are moving toward mail-in voting, making it easier for voters to get ballots while increasing funding to those who mail out and count them. Why shouldn’t New York join this trend? After all, disenfranc­hisement — even if caused unintentio­nally —is not acceptable.

The city’s Board of Elections has already shown that it could not handle the surge in requests for the primary, and there is no doubt that voter turnout will be much higher in November. New Yorkers come out in droves to vote for president, producing long lines and packed polling places. Even assuming that there is no “second wave” of COVID-19 on Election Day, epidemiolo­gists will probably still advise social distancing.

And that’s to say nothing of the risk to poll workers themselves, many of whom are older and especially vulnerable to coronaviru­s.

The solution is right in front of us, and it’s pretty simple. Send an absentee ballot to every voter without the need for an applicatio­n. New Yorkers should not have to navigate an obstacle course to vote for president.

If the Legislatur­e doesn’t amend the law, the governor should simply order it.

Goldfeder is an election lawyer at Stroock, teaches the subject at Fordham Law School, and served as special counsel for public integrity under then-Attorney General Andrew Cuomo. Reade is a student at Fordham Law School. Their views are their own.

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