By Deborah Franzblau and Jim Brennan
Does voting by mail in New York really require a constitutional amendment? Our new analysis says it may not. First, our perspectives on this important issue:
Deborah: I love voting by mail. I can see the ballot in advance, research the candidates and propositions, then cast my ballot without even leaving home; I can check whether my ballot was accepted on the Board of Elections website. Currently, 35 states allow anyone to vote by mail.
But in New York, the only way to vote by mail is to qualify for and request absentee ballots each year. Why?
Jim: Throughout my 32 years in the New York Legislature, we believed that enacting no-excuse-needed mail-in voting required amending the New York State Constitution. This is not easy: two successive classes of both houses of the Legislature have to pass the proposal each term just to put it on the ballot, where voters approve or disapprove it. Nevertheless, I introduced a bill for the amendment and it passed in one house before I retired; it finally appeared on the ballot in 2021 as Proposition 4. The measure failed, but commentators observed that not only was it an off-year election, but supporters didn’t do much at all to counter a well-organized opposition. So the vote was not conclusive, but left us back where we started.
Since the amendment process is so long and unpredictable, we wondered whether an amendment is actually needed. After studying court decisions from other states, we’ve concluded that mail-in voting is in fact compatible with the New York Constitution.
We summarize our analysis below, in the hope that New York state legislators, justices, and others will look at our Constitution with fresh eyes.
The key parts of the state constitution are Article II, Sections 2 and 7:
Article II, Section 2: Absentee voting
The legislature may, by general law, provide a manner in which, and the time and place at which, qualified voters who, on the occurrence of any election, may be absent from the county of their residence or,…may be unable to appear personally at the polling place because of illness or physical disability, may vote and for the return and canvass of their votes.
Article II, Section 7: Manner of voting; identification of voters
All elections by the citizens, except for such town officers as may by law be directed to be otherwise chosen, shall be by ballot, or by such other method as may be prescribed by law, provided that secrecy in voting be preserved…
Section 7 seems to give the Legislature the power to enact any reasonable method of voting, as long as one’s vote stays private. But New York legislators believe that Section 2 restricts allowable voting methods: that “absentee voting” means any voting that is not done in-person, and, crucially, that any voter not mentioned in Article 2 is forbidden from absentee voting.
There are three other nearby states with similar constitutional language that have enacted mail-in voting laws without a constitutional amendment: Massachusetts, Pennsylvania, and Delaware. The laws were upheld by the supreme courts in Massachusetts and Pennsylvania, and although the Delaware law was ultimately rejected by its supreme court, the judge writing the lower-court decision encouraged the supreme court to uphold the mail-in voting law. (The text of most of these decisions is available via links at the Brennan Center for Justice.)
In essence, New York legislators are using the logic of the maxim “expressio unius est exclusio alterius” (“the expression of one thing is the exclusion of the other”); in other words, the existence of a clause granting rights to some implies that all others do not have those rights.
Is this logic justified? Article 2 does not mention any absentee voting methods, nor does it say that only the listed voters may use this type of voting, yet that is the conclusion from expressio unius.
In Massachusetts, Article 45 (in the Amendments section of its constitution), is analogous to New York’s Section 2 on absentee voting. The Massachusetts Supreme Court explicitly rejected this logic when upholding the state’s mail-in voting law (VOTES Act, June 2022 – see “Lyons” August 2022, p. 27-28).
Moreover, the court warned that “Cases from other jurisdictions have consistently counselled that the maxim [expressio unius] should be applied with even greater caution when interpreting a State constitution, especially where its application would act as a restraint on the plenary power of the Legislature.” (p. 28)
Pennsylvania’s constitution has language similar to New York’s: a clause giving the legislature the power to enact voting methods, and a clause to provide for absentee voting: Article VII, Section 4: Method of elections; secrecy in voting; and Section 14: Absentee voting.
As in Massachusetts, the Pennsylvania Supreme Court reversed a lower-court decision, and ruled that its mail-in voting law (PA “Act 77”, 2019) was constitutional (see “McLinko” August, 2022).
At the heart of the Pennsylvania decision is the court’s belief that, “To be a restraint on the General Assembly’s law-making authority, it must be explicitly set forth or necessarily implied in the Constitution. There is no restriction – other than the maintenance of secrecy – in Section 4 on the methods of election the General Assembly may establish.” (p. 69)
The Pennsylvania court, as in Massachusetts, rejected the interpretation of the absentee-voting clause (Article VII, Section 14) as a ban on mail-in voting for all voters not listed, instead holding that its function is to protect the designated voters: “Whether or not Act 77’s universal mail-in provisions survive future legislatures, [Section 14] guarantees the constitutionally designated qualified voters a way to exercise their franchise regardless of their location on Election Day.” (p. 75)
Lastly, Delaware, which has similar constitutional language (Article V, Section 1: Time and manner of holding general election, and Section 4A: General laws for absentee voting),
also enacted a Vote-by-Mail Statute without a constitutional amendment (Senate Bill 320, 2022). However, its Supreme Court upheld a lower Chancery-Court ruling against the statute (see “Higgin”, December, 2022).
The Delaware Supreme Court acknowledged that the lower court had encouraged it to overturn the ruling (p. 5) and the grounds for the decision can be boiled down to one word, tradition: ”In diverging from the approach taken in Pennsylvania and Massachusetts, we do not insinuate a failure of wisdom or analysis on the part of our learned counterparts in those states; indeed, had our historical record and constitutional tradition not pointed us firmly in the direction we have taken, we might very well have followed their lead.“ (p. 61)
The written decisions from Massachusetts, Pennsylvania, and even Delaware provide good logical arguments why mail-in voting should be constitutional in New York. The key question is whether tradition should prevail over logic. Currently, tradition is winning. But now that we have the infrastructure for widespread, secure voting by mail, is that a good enough reason to delay giving voters this valuable option?
Jim Brennan served in the New York State Assembly, 1985-2016, representing parts of Brooklyn and writes a blog on policy and politics. Deborah Franzblau was a mathematics professor at CUNY/College of Staten Island, 1996-2021, and lives in Rockland County. On Twitter @JimBrennanNY.
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