On Dec. 10, 2019, Gov. Andrew Cuomo signed two pieces of legislation designed to modernize New York’s voting laws and increase voter participation. One law seeks to ensure that “absentee ballots match ballots used to vote in the district on Election Day” (S.3135/A.2687) and the second seeks to ensure “that the new, simpliﬁed absentee ballot applications created in 2010 are used in school district elections” (S.2038A/A.1922).
But there is a problem. Although the Legislature amended Education Law Section 2018-a, which applies to districts that require each voter to register in advance of election day (a system called personal registration), it failed to modify Education Law Section 2018-b, which applies to districts that allow voters to register at polling sites on the day of an election (called poll registration).
District clerks must be aware of the distinction between a system of personal registration and a system of poll registration, in order to ensure that the appropriate form of absentee ballot application is issued. (If your district clerk is unsure of what method of registration is used in your district, consult with your school attorney.)
The amended law provides that the “use of any application which is on a form prescribed by the state board of elections shall be acceptable.” However, the absentee ballot application form that is available on the state Board of Election’s website (www.elections.ny.gov/NYSBOE/download/voting/AbsenteeBallot-English.pdf) has not been updated to include school district elections and certain language required by statute. (Editor’s Note: NYSSBA is working with state ofﬁcials to ensure appropriate updates to the form and instructions are incorporated prior to the May 2020 election.) I
t is anticipated that the Legislature will amend Education Law Section 2018-b to ensure that all school districts are subject to the same requirements for issuing absentee ballots, regardless of what system of voter registration is used.
Overall, the amendments have resulted in a confusing situation, and district clerks and other school ofﬁcials may ﬁnd it challenging to understand what they need to do to comply with the law this year. This article explains what various absentee ballot laws require and recommendations for compliance.
General requirements governing absentee ballots
In New York, school districts are required to make absentee ballots available to qualiﬁed voters for the election of school board members and the adoption of the annual budget. School districts must provide absentee ballots, upon proper application, to any qualiﬁed voter who will be unable to vote in person due to illness or physical disability, hospitalization, incarceration, travel outside the voter’s county or city of residence for employment or business reasons, studies, or vacation on the day of the election.
The Education Law is generally silent on when school districts must begin making absentee ballot applications available to voters. Because the notice of the district meeting must include a statement that qualiﬁ ed voters may apply for absentee ballots at the clerk’s ofﬁ ce, it is recommended that ballot applications be made available at the time of the ﬁ rst publication of the notice of the district meeting, if not earlier.
Where a ballot is to be delivered personally to a voter, an application for an absentee ballot must be received by the district clerk no later than the day preceding the election. Where a ballot is to be mailed to a voter, an application for an absentee ballot must be received by the district clerk at least seven days before the election.
At a minimum, the district should endeavor to make absentee ballots available in a time frame that enables voters to apply for and return completed ballots as required by law. In order to be counted, an absentee voter’s ballot must be received in the ofﬁce of the district clerk by 5 p.m. on the day of the election.
All school districts must make available to the public a list of all persons to whom absentee ballots have been issued and ﬁ le this list in the ofﬁce of the clerk. In districts that use poll registration, the district clerk or a designee of the school board makes the list available. In districts with personal registration, the board of registration appointed by the school board makes this list available.
The list must be available for public inspection during regular ofﬁce hours until the day of the election. The purpose of this inspection is so that any qualiﬁed voter may ﬁle a written challenge of any qualiﬁcations of a voter on that list.
In the event a voter seeks to make such a challenge, they are to ﬁle a written challenge, stating the reason(s) for the challenge, with the clerk or a board designee. This challenge is to be transmitted to the election inspectors on Election Day for their determination. This form of challenge is parallel to the ability of any qualiﬁed voter to challenge any other voter in person; the difference for absentee ballots is that it is done in advance, given the nature of the receipt of absentee ballots.
New legislation impacting absentee ballot voting
In a 2018 poll conducted by the New York State Senate Democratic Policy Group, 38% of New Yorkers reported that they voted in an election through absentee ballots. Among those respondents who did not use absentee ballots, many said it was not easy to do so. Legislators said they wished to address these concerns, but, as previously mentioned, the Legislature amended only the law affecting school districts that use personal registration.
In light of the new legislation impacting absentee ballots, the form and instructions on all absentee ballots should be closely reviewed for compliance with legal requirements prior to being printed.
Also, given the stringent and changing legal requirements governing absentee ballots, it is prudent for school districts to appoint election inspectors who are appropriately trained on the canvassing and tallying of absentee ballots.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Catherine Muskin and Jeffrey Lewis of Ferrara Fiorenza P.C.