Last month at the Court of Appeals lawyers and judges debated the meaning of the word “at.”

The prepositional debate, during oral arguments on a constitutional challenge to New York’s Early Mail Voting Law, followed from a creative bit of lawyering by the law’s defenders.[i] The question before the Court was whether an amendment passed in 1966 about the qualifications of voters eliminated the need for voters to vote in person.

The Legislature passed the Early Mail Voting Act in 2023, less than two years after New Yorkers in a 2021 statewide referendum rejected a constitutional amendment to permit no-excuse absentee voting. Between 1966 and 2021 no one appeared to think the 1966 amendment changed the in-person voting requirement in New York to allow no excuse mail-in voting. So the Legislature put it to a vote.

Well-founded or not, a majority of New Yorkers who voted in 2021 had misgivings on the merits of no-excuse absentee voting. They rejected the same scheme the Early Mail Voting Law now imposes. They voted to maintain the status quo of the prior 55 years and their will should prevail because the Early Mail Voting Act is unconstitutional as a matter of legal interpretation and the history and tradition in New York’s Constitution.

The relevant language from Section 1 of Article II is the same today:

“Every citizen shall be entitled to vote at every election … provided that such citizen is [eighteen] years of age or over and shall have been a resident of this state, and of the county, city, or village for thirty days next preceding an election.”[ii]

The 1966 amendment rewrote Section 1 down from over 300 words to one-fifth the size. The editing process removed a 30-day election district residency requirement. It also removed words that limited a voter to be “entitled to vote at such election in the election district” where the voter was a resident, “and not elsewhere.” The provision did not address appearing personally. But that deletion provided the hook for an argument that New York has not required in-person voting since 1966.

Yet anyone reading the Constitution since then would see that arguments over a two-letter word should not be necessary. The next section of Article II is headed “Absentee voting.” It provides “The legislature may … provide a manner in which … qualified voters who, on the occurrence of any election, may be absent … [or] unable to appear personally at the polling place because of illness or physical disability, may vote and for the return canvass of their votes.”[iii] Unlike Section 1, the absentee voting provision in Section 2 addresses voters personally appearing at the polling place.

The law’s opponents argued that the Court must read all parts of the Constitution together. One part cannot be read to make another part superfluous or needless. If Section 1 means that in-person voting is not required, then there is no need for Section 2 setting out the terms for voting absentee.

Further, history and tradition weigh against the Early Mail Voting Act being constitutional. It is a substantial departure from the history of New Yorkers promoting election integrity and taking incremental approaches to making exceptions to in-person voting. From its founding in 1777 New York has promoted in-person voting by secret ballot, only making exceptions by constitutional amendment as circumstances have required.

The 1777 Constitution

New York was an early innovator in promoting election integrity through voting by ballot. The 1777 Constitution put in motion an experiment to elect members of the Senate and Assembly by ballot rather than voice vote.

The 1777 Constitution stated that “an opinion hath long prevailed among divers of the good people of this State that voting at elections by ballot would tend more to preserve the liberty and equal freedom of the people than voting viva voce,”[iv] i.e., by word of mouth.

Recognizing the disruption caused by the Revolutionary War, the framers of the 1777 Constitution directed the Legislature to pass acts after the war to have Senate and Assembly elections held by ballot. But the framers also gave the Legislature authority to abolish such acts if “certain inconveniences and mischiefs, unforeseen at this day, may be found to attend the said mode of electing by ballot” that the Legislature “found less conducive to the safety or interest of the State than the method of voting viva voce.”[v] The Legislature passed a law in 1787 that extended voting by secret ballot to Senators and Members of the Assembly.[vi]

In 1777 the framers did not know how their experiment in voting by ballot would work out. But they and their fellow New Yorkers recognized the threats of intimidation and coercion involved with gathering the public in a crowd for a voice vote. Thus, New York’s first Constitution showed the value New Yorkers placed on maintaining election integrity.

The 1821 Constitution

New York adopted its second Constitution in 1822 after a Constitutional Convention held in 1821.[vii] New Article II addressed suffrage, including the qualifications of voters, exclusions from the right of suffrage and registration of voters.[viii] Article II, Section 4 made voting by ballot for state elective offices permanent in the Constitution. “All elections by the citizens shall be by ballot, except for such town officers as may by law be directed to be otherwise chosen.”[ix]

The concerns the framers expressed in 1777—about unknown inconveniences and mischiefs in voting by ballot—must not have arisen to a degree outweighing what voting by secret ballot did “to preserve the liberty and equal freedom of the people”[x] in exercising their suffrage rights.

The 1846 Constitution

Delegates convened in 1846 for a Constitutional Convention. It resulted in New Yorkers approving a third state Constitution that left the elections by ballot provision unchanged.[xi]

Here it is important to note what the convention delegates and New York voters at the time understood to mean voting by ballot. Under Chapter VI of the 1846 Revised Statutes, electors submitted their ballots, folded to conceal the contents, by hand delivery to an election inspector.[xii] “The electors shall vote by ballot; and each person offering to vote, shall deliver his ballot, so folded as to conceal the contents, to one of the inspectors, in the presence of the board.”[xiii]

It is unlikely that anyone considered voting by mail then. In-person voting also served as a check on fraud with the law providing elector challenges by inspectors or anyone present at the polls.[xiv] It required the challenged elector to provide a sworn response on his qualifications.[xv] Thus, elections by ballot were designed to preserve election integrity (admittedly among the subset of the adult population qualified to vote).

Furthermore, voting by mail may not have been practical. The United States Post Office did not issue its first postage stamp imposing the cost of postage on the sender until 1847.[xvi] When they adopted the 1846 Constitution New Yorkers understood elections by ballot to mean in-person delivery of written paper ballots.

Civil War Amendment: The Soldier Vote

In 1864 the United States faced a consequential presidential election that could affect the direction and outcome of the Civil War. Over 400,000 men from New York were volunteers in the Union Army and could not vote in person as required under New York law. The legislative process to address soldiers voting absentee resulted in a constitutional amendment approved by voters in a special election held in March 1864.[xvii]

The 1864 law showed the import New Yorkers placed on election integrity and in-person voting. Besides an affidavit affirming qualifications to vote and military service out of the election district, absent electors needed to submit an instrument, attested by a witness and sworn before an officer, appointing an elector in the same town or city where the absent elector lived to cast his absentee ballot.

The ballot itself needed to be sealed in an envelope separate from the affidavit, marked “soldier’s vote” and directed to the person empowered to cast his ballot. The envelope marked “soldier’s ballot” needed to remain sealed until delivered by the absent voter’s appointee to the election inspectors on election day.[xviii]

Thus, even in the urgency of the Civil War and after amending the Constitution in a special election, the absentee voting law contained strict provisions to maintain election integrity and follow the procedures of in-person voting by written paper ballot.

The 1894 Constitutional Convention

The absentee voting exception for electors not able to be present at an election because of military service remained unchanged through ratification of New York’s Fourth Constitution in 1894.[xix] But the 1894 Constitutional Convention did lead to a change to then-numbered Section 5 of Article II. Besides all elections (except for town officers) being by ballot, the voters ratified “or by such other method as may be prescribed by law, provided that secrecy in voting may be preserved.”[xx]

The new wording, including providing for secrecy, enabled polling places to use voting machines. Convention delegates devoted their debate time on this amendment to the wisdom of employing voting machines that then, or in the future, could be sabotaged,[xxi] make errors,[xxii] eliminate human error,[xxiii] eliminate fraud,[xxiv] preserve secrecy[xxv] and save money.[xxvi]

The convention delegates, focused election integrity concerns as established in the 1777 Constitution, aimed at adopting an amendment best designed “to preserve the liberty and equal freedom of the people” by providing accurate results and ensuring secrecy. Implicit in the entire discussion was in-person voting. The question on the floor was the in-person voting method(s). Had the delegates intended to open elections to mail voting they would have addressed eliminating the absentee exception for military service.

Post-Civil War Absentee Voting Amendments 

The 1894 Constitution did not contain any new provisions addressing absentee voting. Absentee voting did not receive any attention until after World War I. Amendments in 1919 (business travelers), and 1923 and 1929 (veterans) provided limited exceptions to in-person voting.[xxvii]

New Yorkers ratified several more amendments to address persons displaced by duties, occupation or business, peacetime military service or illness or physical disability from 1947 to 1955. Finally, in 1963, the state amended Section 2 of Article 2 to grant the Legislature power to establish the excuses voters may have for being absent to qualify to submit an absentee ballot.[xxviii]

The slow and incremental evolution of the absentee ballot provision over almost a century underscores a theme of New Yorkers valuing election integrity through in-person voting with limited exceptions.

The 1966 Amendment

In 1966 New Yorkers voted to clean up and simplify who is qualified to vote in New York. Among other things, the amendment removed language from 1864 providing that a person in military service (as later expanded to family members) could not be disqualified from voting on residency grounds and that the Legislature could provide a means for those persons to vote absentee. The amendment otherwise simply cleaned up multiple residency requirements into one three-month residency requirement, which is now thirty days.[xxix]

Section 1 of Article II addresses voter qualifications based on citizenship, age, and place and duration of residence.

Section 2 of Article II lets the Legislature provide a manner for qualified voters who will be absent from their county or city on election day, or otherwise unable to appear personally at the polling place, based on illness or physical disability, a means to vote and have their votes counted.

Section 7 of Article 11 provides that those qualified voters present in their county or city on election day and healthy and able to appear personally at the polling place shall vote by ballot or by another method that preserves secrecy.[xxx]

The three provisions together preserve election integrity by ensuring only qualified voters vote, limiting those who do not vote in person to qualified voters with excuses, and providing a means to vote in secret.

The 1967 Constitutional Convention Report

Constitutional scholars at the time of the 1966 amendment rejected the idea that it enabled mail voting. Before the 1967 Constitutional Convention the Temporary State Commission on the Constitutional Convention produced a report on the right to vote.[xxxi]

The Temporary Commission noted that voters changed the residency requirement for qualified voters by amending Section 1 of Article II effective January 1, 1967.[xxxii] It later analyzed absentee voting and absentee registration under the Constitution.

The Commission noted the competing arguments. One, that absentee voting should be “an administrative matter, over which the Legislature should have full discretion.”[xxxiii] Two, that “the Constitution should continue to place limitations on the Legislature’s power to permit absentee voting, in order to protect the integrity of the electoral process.” [emphasis added] [xxxiv]

The Temporary Commission acknowledged in a footnote the possibility that the recently amended Section 1, in removing the election district residency requirement, gave the Legislature unrestricted discretion over absentee voting. But the Temporary Commission then noted that “this interpretation, however, makes Article II, Section 2 superfluous.”[xxxv]

Most important, the Temporary Commission noted the open debate over the merits of providing the Legislature unrestricted discretion over absentee voting. It acknowledged existing claims that absentee voting may not have the same safeguards that the polls provide. It cited as an example that “it may be difficult to assure that voters cast their ballots in secret, free from improper influences.”[xxxvi]

Conclusion

There can be an honest debate over questions about election integrity, improper influences and ballot secrecy with no-excuse absentee or early mail voting, no matter the label. Issues around voting and election integrity have existed since the founding, and New York’s Constitution has addressed those issues since it was first adopted in 1777. Since then, those questions have been taken to the voters, and the voters have agreed to changes to the suffrage provisions in Article II over time.

Most recently, a majority of New Yorkers who voted rejected no-excuse absentee voting in 2021. Right or wrong on the merits, it was the will of the people. The Legislature passed an early mail voting law in opposition to the people’s will.

As contemporary constitutional scholars noted in 1967, the application of Article II’s Section 1 urged by the Law’s defenders renders Article II’s Section 2 superfluous. And their speculation as to Section 1’s effect—like the debate in the Court of Appeals—means it is unlikely anyone voting in 1966 thought they were opening elections to mail-in voting.

The state Constitution should be applied by its plain meaning, as the people who author it and live by it have designed.

A commonsense approach to reading the Constitution, coupled with consideration that it has expressed the will of the people for over two hundred years, should weigh against the Early Mail Voting Act being constitutional.

[i] L. 2023, ch. 481.

[ii] N.Y. Const. art. II, § 1.

[iii] N.Y. Const. art. Ii, § 2.

[iv] 1777 N.Y. Const. art. VI.

[v] Id.

[vi] Id. at 668.

[vii] Id. at 637.

[viii] 1821 N.Y. Const. art II, § 1-3.

[ix] 1821 N.Y. Const. art. II, § 4.

[x] 1777 N.Y. Const. art. VI.

[xi] 1846 N.Y. Const. art. II, § 5.

[xii] 1846 Revised Statutes, ch. VI title 4, § 7.

[xiii] Id.

[xiv] Id., § 13.

[xv] Id., § 14.

[xvi] “Significant Dates.” Significant Dates in USPS History – Who We Are – About.usps.com. Last accessed July 3, 2024. Available at https://perma.cc/AX3L-8QLR.

[xvii] 2 Lincoln, supra at 235-239.

[xviii] Laws of the State of New York (1864), 549.

[xix] 1894 N.Y. Const. art. II, § 1.

[xx] Id., § 5.

[xxi] New York Constitutional Convention of 1894, Revised Record, Vol. III, p. 84.

[xxii] Id. at 85.

[xxiii] Id. at 86.

[xxiv] Id. at 87.

[xxv] Id. at 89.

[xxvi] Id. at 90.

[xxvii] Galie, Ordered Liberty 207 (1996).

[xxviii] Id. at 268.

[xxix] N.Y. Const. art. II, § 1.

[xxx] N.Y. Const. art. II, § 7.

[xxxi] “The Right to Vote,” Temporary State Commission on the Constitutional Convention, February 10, 1967.

[xxxii] Id. at 29.

[xxxiii] Id. at 51.

[xxxiv] Id. at 51-52 (emphasis added).

[xxxv] Id. at 51, N. 28.

[xxxvi] Id. at 52.