Send ev­ery N.Y. voter a bal­lot

New York Daily News - - EDITORIAL - 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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