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Appeals court mulls late challenge to NY absentee ballot law

November 1, 2022 Michael Hill, Associated Press
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State appeals court judges pressed attorneys for Republicans on Tuesday over why new absentee ballot rules in New York should be rejected with Election Day looming and more than 550,000 of the ballots already sent out.

The Appellate Division of the state Supreme Court heard an appeal from state officials of a lower court ruling that declared New York’s early review of absentee ballots unconstitutional. Processing of absentee ballots as they come in — as opposed to waiting until election night — was adopted to reduce sometimes weeks-long delays for official results.

Early absentee ballot processing was thrown in limbo last month after the ruling by Saratoga County Judge Diane Freestone. She said the law clashes with an individual’s constitutional right to challenge ballots in court before they’re counted, siding with Republican and Conservative party officials who sued.

The mid-level appeals court put a temporary hold on Freestone’s order pausing the count after the Democrats in control of state government appealed. Absentee ballots are currently being processed around the state, after some reluctance by GOP election officials.

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Lawyers for the Republican plaintiffs told the five-judge panel that Freestone’s ruling was correct and that the new law removes a crucial later of judicial review.

“We have a statute that is expedient. It sacrifices accuracy, it sacrifices the truth,” attorney John Ciampoli told the judges.

Plaintiffs also are challenging a pandemic-era law that allows voters worried about becoming ill to vote by absentee.

The early review challenge was bought in late September, about nine months after the law was enacted. Judges asked plaintiffs’ attorneys why they waited until it was close the Nov. 8 election to challenge it.

“Where have you been?” Justice John Egan asked Ciampoli. “Here we are a week before the election. There’s a whole lot of absentee ballots that have been cast by now.”

The lawyers said the unconstitutional law needed to be addressed.

About 552,000 absentee ballots have been sent out with more than 188,000 returned so far, a lawyer for the state Board of Elections told the judges.

Lawyers for the state and their allies argued against changing the rules after absentee balloting has begun.

“The New York Constitution protects the right to vote, not the right of private parties to challenge the qualified votes of others,” said Aria Branch, who is representing the Democratic Congressional Campaign Committee and other parties.

Sarah Rosenbluth of the state attorney general’s office said the action should have been bought much earlier, and that now the lower court ruling has thrown the canvassing process in disarray.

The court is expected to release a ruling soon. The case could ultimately end up before New York’s highest court, the Court of Appeals.

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