On October 31, 2024, in Amedure v. State, the New York State Court of Appeals ruled against a constitutional challenge of a 2021 state law creating a new process for canvassing absentee and other mail-in ballots.[1] The plaintiffs argued this new process for counting ballots violated the New York Constitution’s requirement of bipartisan control of county boards of elections.[2] They also argued that because the new system for counting mail-in ballots does not permit judicial review of a board of elections’ decision to count a ballot, it violates the “constitutional principles of judicial review and separation of powers.”[3] Unanimously, the Court of Appeals rejected these arguments.

According to the state of New York, the law at issue, chapter 763 of the Laws of 2021, was enacted by the legislature to speed up the process of counting mail-in ballots.[4] Under the new process, ballots continue to be reviewed by a bipartisan team at a local board of elections.[5] The bipartisan team determines whether a ballot is valid, invalid, or invalid but “curable.”[6] Under the process established by chapter 763 of the Laws of 2021, when the bipartisan board of elections team unanimously agrees that a ballot is valid or votes 1-to-1 on the validity of the ballot, the ballot is counted, and a court cannot order it to be uncounted.[7] 

The state constitution mandates that local boards of elections, the entities tasked with the processing and canvassing of ballots, be under bipartisan control.[8] The plaintiffs argued that by allowing only one board of elections commissioner (or their representative) to cause a ballot to be counted, chapter 763 of the Laws of 2021 violates the state constitution.[9]

The Court of Appeals, however, found that the new method of processing and canvassing mail-in ballots did not violate Article II, Section 8 of the state constitution.[10] According to the court, the state constitution only requires that the two major political parties be represented equally on local boards of elections.[11] Each party representative, the court held, has the same power to make a mail-in ballot valid, meaning that the state constitution’s bipartisan requirement has not been violated by chapter 763 of the Laws of 2021.[12]

The court went on to discuss the history of the bipartisan boards of elections section of the state constitution and how it has been applied. The section in question, according to the court, requires representation by the two major parties in New York State and nothing more.[13] It never was intended to require unanimity of the two election commissioners for the local board of elections to act.[14]

The court went on to address a concern raised by the dissenting justices in the lower court, especially the concern that an election board, like a legislative body, should not be able to act on a tie vote. According to the court, however, chapter 763 of the Laws of 2021 establishes a process to deal with tie votes of commissioners on the validity of a ballot: on a tie vote, the ballot is prepared for canvassing and then canvassed.[15] 

The court then addressed the plaintiffs’ argument that the inability to seek judicial review on an election board’s decision to count a ballot makes chapter 763 of the Laws of 2021 unconstitutional. First, the court stated that the state constitution gives the state legislature broad authority to adopt laws regarding voting and the right to vote.[16] The court then outlined a number of provisions that permit the judiciary to exercise oversight over elections. Specifically, candidates may still “seek a temporary or preliminary injunction to halt a canvass” when irregularities arise in an election; the attorney general may still commence a proceeding to contest a candidate’s title to office; and the election law continues to allow for prosecutions for a variety of election-related crimes.[17]

Finally, the court addressed the plaintiffs’ argument that the new system for canvassing mail-in ballots will enable election fraud. Plaintiffs posited that by granting one election commissioner power to validate a ballot, the new system increases the likelihood that fraudulent ballots will be counted.  The court again recounted that “numerous safeguards” remain in the election law to combat election-related fraud.  Specifically, the court referenced provisions in the election Law that allow for election observers to be present during the processing and canvassing of mail-in ballots, and prosecution of those who commit election-related fraud.[18]

For these reasons, the Court of Appeals affirmed the lower court’s decision and upheld chapter 763 of the Laws of 2021.

While the new mail-in ballot canvassing process was upheld, it has its critics. The New York State Legislature begins its 2025 session in only a few weeks, and it’s almost certain that some state legislators will introduce bills in 2025 to alter the mail-in ballot canvassing process that was upheld by the Court of Appeals. The Amedure decision probably did not end the debate over how voters’ mail-in ballots are counted in the Empire State.

[1] Amedure v. State, No. 126, 2024 WL 4629758 (N.Y. 2024).

[2] Id. at 1.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at 2.

[7] Id.

[8] N.Y. Const. art. II, § 8.

[9] Amedure, 2024 WL 4629758, at 3.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id. at 4.

[16] Id.

[17] Id.

[18] Id. at 5.

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