Stefanik v. Hochul

211 N.Y.S.3d 574

Elise STEFANIK et al., Appellants,

v.Kathy HOCHUL, as Governor of the State of New York, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 29, 2024

Decided and Entered: May 9, 2024

O’Connell and Aronowitz, Albany (Michael Y. Hawrylchak of counsel), for appellants.

Letitia James, Attorney General, Albany (Jeffrey W. Lang of counsel), for Kathy Hochul and another, respondents.

Cullen and Dykman LLP, Uniondale (Deborah N. Misir of counsel), for Peter S. Kosinski, respondent.

Brian L. Quail, Albany, for Douglas A. Kellner, respondent.

Elias Law Group LLP, Washington, DC (Aria C. Branch of counsel, admitted pro hac vice) and Dreyer Boyajian LLP, Albany (James R. Peluso of counsel), for DCCC and others, intervenors-respondents.

Hogan Lovells U.S. LLP, New York City (Matthew C. Sullivan of counsel), for Common Cause New York, amicus curiae.

Friedman Kaplan Seiler Adelman & Robbins LLP, New York City (Lawrence Robbins of counsel), for Leadership Now Project, amicus curiae.

Before: Garry, P.J., Egan Jr., Lynch, Ceresia and Mackey, JJ.

OPINION AND ORDER

Lynch, J.

Appeal from a judgment of the Supreme Court (Christina L. Ryba, J.), entered February 5, 2024 in Albany County, which, among other things, declared that the New York Early Mail Voter Act is constitutional and granted certain defendants’ motions to dismiss the complaint.

On this appeal, we are asked to determine the constitutionality of New York’s recently enacted universal mail-in voting law. After considering the text and history of N.Y. Constitution article II, we affirm Supreme Court’s judgment declaring the law constitutional. Our analysis follows.

In 2023, the Legislature passed the New York Early Mail Voter Act (Election Law § 8–700 et seq. [hereinafter the Act]; see L 2023, ch 481, § 2), permitting all registered voters in New York to apply to "vote early by mail … in any election … in which the voter is eligible to vote" (Election Law § 8–700[1]). To be considered for processing, an application to vote early by mail must be received by a local Board of Elections (hereinafter BOE) no later than 10 days before the election (see Election Law § 8–700[2][d]). Once received, the BOE confirms that the applicant is "a registered voter of the county or city at the address listed in the application and is eligible to vote in the election or elections for which the application is filed" (Election Law § 8–702[1]). A ballot is then issued to the applicant, along with a postage-paid return envelope, which must be cast and counted by the BOE if received by the close of polls on election day or postmarked by that date and received no later than seven days thereafter (see Election Law §§ 8–704[1], [2]; 8–710[1]). The Act contains safeguards to protect against fraud, requiring the State BOE to maintain "an electronic early mail ballot tracking system" that records, among other information, whether it "received such voter’s completed early mail ballot" and "counted or rejected" it (Election Law § 8–712[1], [3][e], [g]). Correspondingly, each local BOE is required to "maintain an early mail ballot tracking system integrated with the [S]tate [BOE’s] system" (Election Law § 8–712[1]). Concomitant with the Act’s passage, the Legislature also amended Election Law § 9–209 to make the canvass procedures set forth in that section – which contain substantial protections to ensure election integrity – applicable to early mail ballots. The express purpose of the Act is to ensure "ease of participation" in elections and to "make New York State a leader in engaging the electorate, meeting voters where they are and opening up greater opportunities for people to have their choices made on the ballot" (Senate Introducer’s Memo in Support of 2023 N.Y. Senate–Assembly Bill S7394, A7632). It was signed into law on September 20, 2023 and became effective January 1, 2024.¹

Prior to taking effect, plaintiffs – members of the U.S. House of Representatives in four of New York’s congressional districts, along with citizen voters, members of the New York Legislature, the New York Republican State Committee, the Conservative Party of New York, the National Republican Congressional Committee and others – commenced this declaratory judgment action challenging the Act as violative of the N.Y. Constitution and seeking permanent injunctive relief prohibiting its enforcement in upcoming elections. Plaintiffs argue that the Act improperly expands the group of voters eligible to vote absentee under article II, § 2 and cannot be implemented without a constitutional amendment.²

Defendants Douglas A. Kellner and Andrew J. Spano – Commissioners of the State BOE – answered and asserted an affirmative defense that plaintiffs failed to state a cause of action. Defendant Peter S. Kosinski, another Commissioner and Co–Chair of the State BOE, answered separately and asked Supreme Court to grant the relief requested by plaintiffs. Defendants State of New York and Governor Kathy Hochul (hereinafter the State defendants) moved to dismiss the complaint for failure to state a cause of action, arguing that the Act is constitutional and the Legislature was authorized to pass a statute providing for universal mail-in voting under article II, § 7. The Democratic Congressional Campaign Committee, along with certain members of the U.S. Congress and a group of voters, successfully intervened in the action and also moved to dismiss the complaint for failure to state a cause of action. Plaintiffs cross-moved for summary judgment on liability. Supreme Court granted the motions to dismiss and denied plaintiffs’ cross-motion, declaring the Act "constitutional under the N.Y. Constitution."³ Plaintiffs appeal.

[1, 2] On a motion to dismiss pursuant to CPLR 3211(a)(7), courts afford the complaint a "liberal construction" and "accept the facts as alleged [therein] as true, accord [the] plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Lean v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]; see Maddicks v. Big City Props., LLC, 34 N.Y.3d 116, 123, 114 N.Y.S.3d 1, 137 N.E.3d 456 [2019]). "Upon such a motion, a court may reach the merits of a properly pleaded cause of action for a declaratory judgment where no questions of fact are presented by the controversy" (Sullivan v. New York State Joint Commn. on Pub. Ethics, 207 A.D.3d 117, 124, 170 N.Y.S.3d 234 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Hoffman v. City of Syracuse, 2 N.Y.2d 484, 487, 161 N.Y.S.2d 111, 141 N.E.2d 605 [1957]). In that context, the court should treat the motion as one "for a declaration in the defendant’s favor" (Sullivan v. New York State Joint Commn. on Pub. Ethics, 207 A.D.3d at 124, 170 N.Y.S.3d 234 [internal quotation marks and citations omitted]). We find that Supreme Court properly did so here.

[3, 4] Duly enacted statutes enjoy a "strong presumption of constitutionality" (White v. Cuomo, 38 N.Y.3d 209, 216, 172 N.Y.S.3d 373, 192 N.E.3d 300 [2022] [internal quotation marks and citations omitted]; see Delgado v. State of New York, 39 N.Y.3d 242, 245, 185 N.Y.S.3d 729, 206 N.E.3d 598 [2022]; Overstock.com, Inc. v. New York State Dept. of Taxation & Fin., 20 N.Y.3d 586, 593, 965 N.Y.S.2d 61, 987 N.E.2d 621 [2013], cert denied 571 U.S. 1071, 134 S.Ct. 682, 187 L.Ed.2d 549 [2013]). "To rebut that presumption, the party attempting to strike down a statute as facially unconstitutional bears the heavy burden of proving beyond a reasonable doubt that the statute is in conflict with the Constitution" (People v. Viviani, 36 N.Y.3d 564, 576, 145 N.Y.S.3d 512, 169 N.E.3d 224 [2021] [internal quotation marks and citations omitted]; see White v. Cuomo, 38 N.Y.3d at 216, 172 N.Y.S.3d 373, 192 N.E.3d 300; Matter of County of Chemung v. Shah, 28 N.Y.3d 244, 262, 44 N.Y.S.3d 326, 66 N.E.3d 1044 [2016]; LaValle v. Hayden, 98 N.Y.2d 155, 161, 746 N.Y.S.2d 125, 773 N.E.2d 490 [2002]). Courts will strike down legislative enactments "only as a last unavoidable result[,] after every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible" (White v. Cuomo, 38 N.Y.3d at 216, 172 N.Y.S.3d 373, 192 N.E.3d 300 [internal quotation marks and citations omitted]; accord Matter of Harkenrider v. Hochul, 38 N.Y.3d 494, 509, 176 N.Y.S.3d 157, 197 N.E.3d 437 [2022]).

[5] Our analysis of the Act necessarily begins with the plain language of the constitutional text (see Matter of Harkenrider v. Hochul, 38 N.Y.3d at 509, 176 N.Y.S.3d 157, 197 N.E.3d 437). " 'In construing the language of the Constitution[,] as in construing the language of a statute, … [we] look for the intention of the People and give to the language used its ordinary meaning’ " (id., quoting Matter of Sherrill v. O’Brien, 188 N.Y. 185, 207, 81 N.E. 124 [1907]; see White v. Cuomo, 38 N.Y.3d at 219–220, 172 N.Y.S.3d 373, 192 N.E.3d 300). Article II of the N.Y. Constitution governs the subject of voting. Article II, § 1 sets forth the "[q]ualifications of voters," providing that "[e]very citizen shall be entitled to vote at every election for all officers elected by the people and upon all questions submitted to the vote of the people provided that such citizen is [18] years of age or over and shall have been a resident of this state, and of the county, city, or village for [30] days next preceding an election." This provision establishes broad and universal voting rights for the state electorate, subject only to qualifications for residency, citizenship and age (see Matter of Blaikie v. Power, 13 N.Y.2d 134, 140, 243 N.Y.S.2d 185, 193 N.E.2d 55 [1963], appeal dismissed 375 U.S. 439, 84 S.Ct. 507, 11 L.Ed.2d 471 [1964]). In its current format, nothing in this section addresses – let alone restricts – the manner in which voting is...