Appellate court overturns Republican victory in absentee ballot case

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ALBANY – Various members of the Republican party recently won a lawsuit that altered the way absentee ballots would be counted for the upcoming November elections.  The  Appellate Court for the Third Department overturned the decision on Tuesday, November 1, ruling that absentee ballots are to be counted as they are received by the local boards of elections.

The lawsuit was brought by various members of the Republican party, including Republican Dutchess County Elections Commissioner Erik Haight.  They successfully argued in the Saratoga Supreme Court that the earliest that absentee ballots should be counted would be election night, in the event a judge needed to rule on any objections to specific ballots.  The state supreme court agreed.

In reversing the lower court’s decision, the judges at the appellate court said valid absentee ballots are to be counted as they are received at the state and local boards of elections.  The judges said in part, “In our view, granting petitioners the requested relief during an ongoing election would be extremely disruptive and profoundly destabilizing and prejudicial to candidates, voters, and the State and local Boards of Elections.”

A change in state law earlier this year allowed the ballots to be counted as they are received.  The counting process has been in place for several special elections this year, as well as the primary elections.  The appellate court overturned the Republican victory, noting that they waited too long to file the original lawsuit.

In dismissing the lower court’s decision, the appellate court relied on information from the New York State Board of Elections indicating that more than 488,000 absentee ballots had been mailed out for the November election and more than 127,000 of those had been returned as of October 24, 2022.  Under the law that went into effect earlier this year, the returned ballots that have been determined valid have already been counted.

Noted Poughkeepsie-based election law attorney, Michael Treybich said, “The Appellate Division made the right call. The plaintiffs waited 18 months to challenge this law after several elections have been held with it (the law) in place.”  Treybich has successfully challenged Haight in many elections cases in court and he noted that more than 140,000 voters have already voted by absentee ballot this year statewide under the existing law that Haight sought to overturn.  “The plaintiffs’ goal to disenfranchise those voters failed,” Treybich proclaimed.

Commissioner Erik Haight, meanwhile, expressed his disappointment in the latest ruling. “The Appellate Division got it wrong so we will be applying to take it to the Court of Appeals but in the meantime, I will comply with the ruling.”