Ciampoli scores another win against Elias in absentee voting case

                                                                                 

Nassau County

The Democratic majority in Albany, in its professed effort to extend and expand voting rights in New York, appears to have made the fatal mistake of cutting the Courts out of the ballot-counting process.

And that is not looked upon favorably by the judicial system.

A Supreme Court judge in Saratoga County today said the state legislature and governor did not have the legal authority to effectively bar the courts from reviewing contested absentee ballots or preserving them for inspection before counting.

State Supreme Court Justice Dianne Freestone declared unconstitutional election law amendments adopted by the Democratic majority on the state legislature in January and signed by Democratic governor Kathy Hochul.She also ordered preservation of contested absentee ballots.

Freestone wrote in her 28-page decision: "The New York State Constitution gives the Supreme Court jurisdiction over all questions of law emanating from the Election Law. New York State electoral history has repeatedly seen extremely close races in which the courts were involved to review the administrative determinations of the Boards of Elections  to invalidate, validate, qualify or unqualify voters and ballots." 

Although other courts have ruled in favor on expanding absentee balloting, Freestone wrote, "It is the opinion of this court that a legislative action taken in excess of its Constitutional authority is invalid as a matter of law."

In declaring the election law amendments unconstitutional, Freestone adopted the arguments of Republican election lawyer John Ciampoli, former Nassau County Attorney and a lead counsel in the case challenging the changes, along with Albany lawyer Adam Fusco.

This is the second time Ciampoli has defeated attorney Marc Elias, once considered an election law wizard after he won 62 election law cases for Democrats in two months in 2021. Ciampoli pulled out a victory for  U.S. Rep. Claudia Tenney, a Republican from upstate New York,  last year when her 2020 election was challenged by Elias.

This time, Elias didn't appear but three attorneys from the Elias Law Group argued against Ciampoli and Fusco. along with a slew of other lawyers.

"Ciampoli 2,  Elias 0" Ciampoli said in an email.

In New York, the right to  an absentee ballot has always been fairly limited. The state constitution required in-person voting on Election Day until 1955 and then only allowed absentee ballots for people who declared they would be out of town or could not appear because of illness or physical disability,

Freestone noted in her decision that past court cases enforced safeguards on absentees because "it is recognized that 'absentee ballots are cast without the secrecy and other protections afforded at the polling place, giving rise to opportunities for fraud, coercion and other types of mischief."

But then- Gov. Andrew Cuomo declared a state disaster in March 2020 because of Covid-19 and the state legislature temporarily expanded absentee voting by changing the definition of illness to include "a risk of spreading or contracting a disease that may cause illness to the voter or to other members of the public."

That law was to expire Jan. 1, 2022.  

In November 2021, voters across the state overwhelmingly defeated a proposal for no-excuse absentee voting. 

But in January, again citing the threat of Covid-19, the legislature amended election law to expand absentee balloting to again allow the "threat of illness" excuse.

But the amendments allowed absentee ballots to be counted before Election Day, which."abrogates both the right of an individual to seek judicial intervention of a contested 'qualified' ballot before it is opened and the right of the court to judicially review same prior to canvassing," Freestone wrote.

It limited poll watchers to"observing without objection." And it also "effectively permits one Commissioner to control and override" the bipartisan review process at the Election Board, she said.

"Statutory preclusion of all judicial review of the decisions rendered by an administrative agency in every circumstance would constitute a grant of unlimited and potentially arbitrary power too great for the law to countenance," Freestone wrote.

Ciampoli said in an interview, "This is a one-party legislature and governor gone wild."

Expect immediate appeals of Freestone's decision.