Removes limitations on voting by absentee ballot that are required by the constitution

Summary of provisions

Section 1: Amends section 2 of article II of the constitution to delete the requirement that in order to vote by absentee ballot a qualified person must anticipate being out of the county on the day of the election ox unable to vote in person because HE OR SHE may be absent from the county of HIS OR HER residence or unable to appear in person at the polling place due to illness or physical disability.

Section 2: Provides that the amendment be referred to the first regular legislative session after the next general election of members of the assembly and be published for three months prior to the date of such election.

Existing law

Section 2 of article II of the constitution requires that voters anticipate that they will be out of the county on election day or otherwise unable to go to the polls because of illness or physical disability. No other exceptions are allowed, and over the years the legislature has grafted onto this restriction additional requirements for disclosure of the reason the person will be out of the county or is unable to go to the polls, where the voter will be and the dates that the voter will be away.

Justification

The restrictions on absentee voting have proved more and more onerous as we have become a more mobile society, and have also proven to be a source of much litigation. The disclosures required by current law but not the constitution not only violate peoples' privacy rights, but because absentee ballot requests are a public record, they also pose a threat to the safety and security of people who are ill or disabled, as well as to the property of those who will be out of the county.

The constitution's requirements, as well as those adopted by the legislature have opened the door widespread and costly litigation in close and hotly contested races, which place an unnecessary burden on both candidates and the boards of elections. One of the most recent examples of this occurred in the recently settled election in the 20th congressional District to replace Kirsten Gillibrand, who was appointed to fill a Senate vacancy by the governor. In that contest, Republican candidate Jim Tedesco challenged the absentee ballot cast

by Senator Gillibrand because she might have been in the district on election day, despite the fact that a voter only needs to have a reasonable expectation that he or she will be absent from the county on election day in order to vote my absentee ballot.

Removal of the constitutional restrictions on voting by absentee ballot will eliminate such unnecessary wastes of time and money, prevent the disenfranchisement of qualified voters and encourage voting by those who might not otherwise go to the polls if it is inconvenient. It will permit the Legislature to allow qualified persons to request a paper ballot without requiring an explanation of the reason for the request, which could be private and personal. It will also empower the Legislature to consider and determine whether new technologies may be used for voting at places other than at the polling place, and whether voting by such means may take place on or before the date set for an election.

Legislative history

2009-2010: S.5028 - Passed Senate; Died in Assembly Rules. 2011-2012: S. 1563 - Referred to Judiciary.

Fiscal implications

None.

Local fiscal implications

None.

Effective date

RESOLVED (if the Assembly concur), That the foregoing amendments be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and, in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.