NYDLC Statement on Absentee Voting During COVID-19 Public Health Emergency


New York Democratic Lawyers Council applauds Governor Cuomo’s announcement to confirm by executive order access to absentee balloting for all New Yorkers during the June 23rd primary election voting period.

New York state election law states that a qualified voter may request an absentee ballot if he or she is unable to appear personally at the polling place of the election district in which he or she is a qualified voter because of illness or physical disability. On the New York State Absentee Ballot Application, voters have the option of checking permanent or temporary illness. There is little doubt that “temporary illness” was intended to include infectious diseases like COVID-19. There is even less doubt that voters’ ability to personally appear at polling places is drastically impaired by the community health risks associated with COVID-19.

The current, broader policy and public health picture drives home that such a position is consistent with both the letter and spirit of the these provisions: voters may be undergoing a COVID-19 infection while being asymptomatic; New Yorkers are currently compelled to practice social distancing and may be fined if they do not; no New Yorker has absolute ability to socially distance short of not leaving their home. Taken altogether, it is clear that New York voters collectively bear an impeded ability to make personal appearances at their assigned polling places, due to the community spread of a temporary illness.

NYDLC strongly supports the Governor’s and county Boards of Elections’ determination that the coronavirus, including the quantifiable risks of contracting of COVID-19 infection, is a temporary illness for which an absentee ballot may be applied for, issued, and counted. Indeed, Erie County Board of Elections has led the way on this and, weeks ago, publicly stated they would do so for the special election in New York Congressional District 27. 

We welcome and applaud any and all direction from our state government that clarifies county Board of Elections are empowered to - and must - accept applications on this basis. Such direction is appropriate and consistent with current state law.

The next step forward is to ensure that our county Boards of Election have the resources, funding, and technical support necessary to accept an increased influx of absentee ballot applications, and absentee ballots themselves. Yesterday, the nation witnessed many voters in line for primary elections in Wisconsin who stated they were out voting amid COVID-19 restrictions because they had requested an absentee ballot but not received one.

Albany must avail itself of matching funds made available through the CARES act to ensure that counties have the ability to invest in the staff and systems necessary to handle a dramatic increase in voting by absentee ballot.

In addition, NYDLC calls for federal appropriations to be made in the stimulus bill currently moving through the House to make vote-by-mail and increased opportunities for early voting during states of emergency possible.