New state bill seeks to protect mail-in votes received late

The U.S. Supreme Court heard arguments in March for a case that could invalidate thousands of mail-in votes cast by New Yorkers in upcoming elections postmarked by Election Day, but received later. State Sen. James Skoufis plans to introduce a new bill meant to stop that from happening.

Current state law allows boards of elections to count ballots sent by mail that are received up to a week after an election day, so long as they were sent on or before Election Day. New York is one of many states to permit that. Republicans in Mississippi, another state with a so-called “postmark rule” in its law, challenged the practice. They argued the statute that allows mail votes to be counted if they are received up to five days after the election violated the federal law that sets the general election date for congressional and presidential elections.

A ruling in favor of Republicans in the U.S. Supreme Court would supersede state laws across the country, including New York’s, and require boards of elections not to count ballots cast on or before Election Day if they are received later due to postal service delays or other reasons out of the control of the voter.

New York can do nothing about the handling of federal elections if the nation’s top court rules in favor of Republicans – but lawmakers could move to protect votes cast in state and local races. Skoufis will introduce legislation early next week intended to do just that. His bill would instruct boards of elections to accept and count ballots cast in state, county, city, town and village elections up to seven days after the close of polls, so long as they are postmarked by Election Day, even if votes cast for federal office can’t be canvassed. 

“With the U.S. Supreme Court on the verge of invalidating thousands of New Yorkers’ absentee ballots postmarked by Election Day, this legislation is a ‘break glass in case of emergency’ proposal,” Skoufis said in a statement to City & State. “A court ruling is expected subsequent to the close of our legislative session and we ought to be prepared with an already-passed bill that ensures, in the likely event of an adverse decision, as many votes are counted as possible.”

A district court ruled in favor of Mississippi, finding the state law did not violate the federal statute. The Fifth Circuit Court of Appeals reversed the decision and ruled all ballots must be cast and received by Election Day, regardless of the postmark date. The Supreme Court justices heard arguments in the case on March 23, with a final decision expected within the next few months.

New York allows for both absentee voting and early voting by mail. Both sections of the law allow ballots postmarked on or before Election Day received up to a week later to be counted. Skoufis’ legislation would address both forms of mail-in voting.