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THE “EVEN YEAR ELECTION LAW” (EYEL) IS CONSTITUTIONAL, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the Even Year Election Law (EYEL) does not violate the New York Constitution or the United States Constitution. The decision is complex and cannot be fairly summarized here:

The EYEL amended provisions of County Law § 400, Town Law § 80, Village Law § 17-1703-a (4), and Municipal Home Rule Law § 34 (3) such that elections for most county, town, and village officials would be held on even-numbered years, and would no longer be held on odd-numbered years, effective January 1, 2025 … . Exceptions were made for the offices of town justice, sheriff, county clerk, district attorney, family court judge, county court judge, and surrogate court judge — each of which has a term of office provided in the New York Constitution … — as well as town and county offices with preexisting three-year terms, all offices in towns coterminous with villages, and all offices in counties located in New York City … . Additionally, a new subsection (h) was added to Municipal Home Rule Law § 34 (3) to preclude county charters from superseding the newly enacted County Law § 400 (8).

The EYEL purports to encourage an increased voter turnout in local elections now scheduled in odd-numbered years, which are years without federal or state-wide elections on the ballot, consistent with the State’s public policy of “[e]ncourag[ing] participation in the elective franchise by all eligible voters to the maximum extent” … , and the mandate of the New York Board of Elections to “take all appropriate steps to encourage the broadest possible voter participation in elections” … .  County of Onondaga v State of New York, 2025 NY Slip Op 02818, Fourth Dept 5-7-25

 

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NEW YORK CITY LOCAL LAW 11, WHICH ALLOWS NON-CITIZENS TO VOTE, VIOLATES THE NEW YORK STATE CONSTITUTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over an extensive dissenting opinion, determined New York City Local Law 11, which allowed non-citizens to vote, violates the New York Constitution:

Local Law 11 allows “municipal voters” to vote in New York City elections for the offices of Mayor, Public Advocate, Comptroller, Borough President and City Council Member (New York City Charter §§ 1057-aa, 1057-bb). The law defines a municipal voter as “a person who is not a United States citizen on the date of the election on which he or she is voting,” and who: (1) “is either a lawful permanent resident or authorized to work in the United States”; (2) “is a resident of New York city and will have been such a resident for 30 consecutive days or longer by the date of such election”; and (3) “meets all qualifications for registering or preregistering to vote under the election law, except for possessing United States citizenship, and who has registered or preregistered to vote with the board of elections in the city of New York under this chapter” … . * * *

Whatever the future may bring, the New York Constitution as it stands today draws a firm line restricting voting to citizens. Fossella v Adams, 2025 NY Slip Op 01668, CtApp 3-20-25

Practice Point: The NYS Constitution restricts the right to vote to citizens.

 

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HERE THE DEFENDANT TOWN DID NOT DEMONSTRATE AS A MATTER OF LAW THAT COMPLIANCE WITH THE NEW YORK VOTING RIGHTS ACT (NYVRA) WOULD FORCE THE TOWN TO VIOLATE THE EQUAL PROTECTION CLAUSE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Lasalle, reversing Supreme Court, determined the defendant town did not demonstrate as a matter of law that compliance with the New York Voting Rights Act (NYVRA) would force the town to violate the Equal Protection Clause of the 14th Amendment to the US Constitution:

On this appeal we are asked to decide whether the vote dilution provisions of the John R. Lewis Voting Rights Act of New York (L 2022, ch 226; hereinafter NYVRA), intended to ensure that a numerical minority’s voice is not removed from local government, facially violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (hereinafter the Equal Protection Clause) … . The defendants in this case, the Town of Newburgh and the Town Board of the Town of Newburgh (hereinafter the Town Board), lack the capacity to challenge the constitutionality of the NYVRA except to the extent that it forces them to violate the Equal Protection Clause. Since, on this record, the defendants failed to show as a matter of law that compliance with the NYVRA would force them to violate the Equal Protection Clause, we reverse the order of the Supreme Court. * * *

Here, the defendants contend that any change of its at-large electoral system to comply with the NYVRA would violate the Equal Protection Clause because it would be done with the express purpose of giving citizens statutorily grouped together by race greater electoral success than its at-large system, and that the NYVRA, unlike the FVRA, is not narrowly tailored to achieve a compelling governmental interest. * * *

However, race-based districting is only one of the possible remedies under the NYVRA; the NYVRA also contemplates remedies that do not sort voters based on race, such as such as ranked-choice voting, cumulative voting, limited voting, and the elimination of staggered terms (see Election Law §§ 17-204[3]; 17-206[5][a][ii],[iv] …). Clarke v Town of Newburgh, 2025 NY Slip Op 00518, Second Dept 1-30-25

Practice Point: Consult this decision for an in-depth analysis of whether the New York Voting Rights Act forces a political subdivision the violate the Equal Protection Clause in fashioning a remedy for an alleged violation of the NYVRA.

 

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THE DEFENDANT TOWN DID NOT MEET THE REQUIREMENTS OF THE NEW YORK VOTING RIGHTS ACT (NYVRA) AND WAS THEREFORE INELIGIBLE FOR THE 90-DAY “SAFE HARBOR” EXTENSION TO ADDRESS THE VIOLATION OF THE NYVRA ALLEGED BY PLAINTIFF-CITIZENS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, determined that the defendant Town of Newburgh’s motion to dismiss the complaint alleging a violation of the New York Voting Rights Act (NYVRA) was properly denied. The so-called “safe harbor” provision of the NYVRA extends the time allowed for a town to address an alleged violation for 90 days. Here the Second Department held that the actions taken by the town were not sufficient to trigger the 90-day extension:

In a case of first impression, the central issue stated broadly is whether the contents of a resolution passed by a political subdivision pursuant to the New York Voting Rights Act (see Election Law § 17-206[7][b]), in which the political subdivision purported to affirm its intent to enact and implement a remedy to a potential voting rights violation, were sufficient to trigger the 90-day safe harbor provision of that statute. * * *

On January 26, 2024, a law firm representing the plaintiffs sent the Town a NYVRA notification letter, alleging that the Town’s use of an at-large method for electing the members of the Town Board violated the NYVRA by diluting the votes of Hispanic and African-American voters. * * *

… [T]he defendants’ interpretation of the NYVRA seems to prioritize prolonging the process, potentially to strategize their position, over the underlying intent and purpose of the statute. They interpret the NYVRA as requiring a political subdivision to do nothing more than pass a resolution reciting some of the language from the statute after spending 50 days deciding whether it is worthwhile to do so. Then, after passage of a contentless resolution that commits a political subdivision to do nothing unless it unilaterally decides that a NYVRA violation “may” exist, a political subdivision enjoys a 90-day immunity from suit, regardless of whether it does anything further and even when it has conclusively decided to take no further action. These positions are irreconcilable with both the text and the purpose of the NYVRA. For all of the foregoing reasons, the Supreme Court properly determined that the defendants failed to satisfy the safe harbor provision of Election Law § 17-206(7) … . Clarke v Town of Newburgh, 2025 NY Slip Op 00517, Second Dept 1-30-25

Practice Point: Consult this decision for a discussion of the criteria for a 90-day “safe harbor” extension to allow a town to address a complaint by citizens alleging violation of the New York Voting Rights Act.

 

ROBERT F KENNEDY, JR’S NOMINATING PETITION DECLARED INVALID (THIRD DEPT).

The Third Department determined that the nominating petition for presidential candidate Robert F. Kennedy, Jr. of the We the People Party was properly declared invalid because the New York residency requirement was not met. The address Kennedy listed as his New York residence was a friend’s home where Kennedy stayed one night:

… [B]oth Kennedy and the friend testified that Kennedy spent only one night at the Katonah home, in June 2024, approximately one month after his nominating petition was filed and two weeks after petitioners commenced this proceeding. Matter of Cartwright v Kennedy, 2024 NY Slip Op 04354, Third Dept 8-29-24

Practice Point: Here 2024 presidential candidate Robert F. Kennedy, Jr’s. nominating petition was declared invalid because the New York residency requirement was not met.

 

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NEW YORK’S EARLY MAIL VOTER ACT IS NOT UNCONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge concurring opinion and a dissenting opinion, determined New York’s Early Mail Voter Act is constitutional:

Plaintiffs, a coalition of elected officials, registered voters, and party officials, challenge New York’s Early Mail Voter Act (the Act), which permits all registered voters to vote early by mail in any election in which the voter is eligible to vote. Plaintiffs maintain the Act is unconstitutional and seek a declaratory judgment and a permanent injunction against its implementation and enforcement. The question raised here is difficult. Though the State Constitution contains no language that explicitly requires in-person voting, the legislative and executive branches have often proceeded as if our Constitution requires as such. Our Court has never been asked to determine what the Constitution requires in this regard. Recently, the legislature assumed that the Constitution requires in-person voting, passing concurrent resolutions culminating in the 2021 proposed amendment to authorize mail-in voting. We acknowledge that the public rejected that amendment, and we take seriously both the legislature’s position in 2021 and the voters’ rejection of the proposed constitutional amendment. At the same time, we may not simply defer to the legislature’s assumptions about what the Constitution requires. Our task is to rigorously analyze the constitutional text and history to determine if New York’s Early Mail Voter Act is unconstitutional. We now hold that it is not. Stefanik v Hochul, 2024 NY Slip Op 04236, CtApp 8-20-24

Practice Point: New York’s Early Mail Voter Act is not unconstitutional.

 

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THE NEW YORK EARLY MAIL VOTER ACT, EFFECTIVE JANAURY 1, 2024, IS CONSTITUTIONAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the 2923 New York Early Mail Voter Act (Election Law 8-700 et seq) is constitutional:

In 2023, the Legislature passed the New York Early Mail Voter Act (Election Law § 8-700 et seq), 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” … . 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 … . 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” … . 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 … . 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 … . Correspondingly, each local BOE is required to “maintain an early mail ballot tracking system integrated with the [S]tate [BOE’s] system” … . 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” … . It was signed into law on September 20, 2023 and became effective January 1, 2024.  Stefanik v Hochul, 2024 NY Slip Op 02569, Second Dept 5-9-24

 

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THE NYC LOCAL LAW ALLOWING NON-CITIZENS TO VOTE IN MUNICIPAL ELECTIONS IS INVALID (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Wooten, over a comprehensive partial concurrence and partial dissent, determined that a NYC Local Law which allowed non-citizens to vote in NYC municipal elections is invalid. The opinion addressed in detail the standing of the different categories of plaintiffs and the validity of the Local Law under the NYS Constitution, the Election Law, and the Municipal Home Rule Law:

This case concerns the validity of Local Law No. 11 (2022) of City of New York, which created a new class of voters eligible to vote in municipal elections consisting of individuals who are not United States citizens and who meet certain enumerated criteria. We determine that this local law was enacted in violation of the New York State Constitution and Municipal Home Rule Law, and thus, must be declared null and void. …

The local law created a new class of voters called “municipal voters” who would be entitled to vote in municipal elections for the offices of mayor, public advocate, comptroller, borough president, and council member. The law defines a “municipal voter” as “a person who is not a United States citizen on the date of the election on which he or she is voting,” and who meets the following criteria: (1) “is either a lawful permanent resident or authorized to work in the United States”; (2) “is a resident of New York [C]ity and will have been such a resident for 30 consecutive days or longer by the date of such election”; and (3) “meets all qualifications for registering or pre-registering to vote under the election law, except for possessing United States citizenship, and who has registered or pre-registered to vote with the board of elections in the city of New York under this chapter.” Fossella v Adams, 2024 NY Slip Op 00891, Second Dept 2-21-24

Practice Point: A NYC Local Law allowing non-US citizens to vote in NYC municipal elections is null and void.

 

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THE COURTS CAN COMPEL (MANDAMUS) THE INDEPENDENT REDISTRICTING COMMISSION (IRC) TO DRAW THE LEGISLATIVE DISTRICTS; THE IRC IS ORDERED TO SUBMIT ITS REDISTRICTING PLAN BY FEBRUARY 28, 2024 (CT APP). ​

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Wilson, over a three-judge dissenting opinion, determined the courts can compel (mandamus) the Independent Redistricting Commission (IRC) to draw the legislative districts. The opinion is far too comprehensive to fairly summarize:

In 2014, the voters of New York amended our Constitution to provide that legislative districts be drawn by an Independent Redistricting Commission (IRC). The Constitution demands that process, not districts drawn by courts. Nevertheless, the IRC failed to discharge its constitutional duty. That dereliction is undisputed. The Appellate Division concluded that the IRC can be compelled to reconvene to fulfill that duty; we agree. There is no reason the Constitution should be disregarded. Matter of Hoffmann v New York State Ind. Redistricting Commn., 2023 NY Slip Op 06344, CtApp 12-12-23

Practice Point: The courts have the power to compel the Independent Redistricting Commission (IRC) to submit a redistricting plan. The IRC was ordered to do so by February 28, 2024.

 

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THE PETITIONS FOR A PERMISSIVE REFERENDUM ON THE BONDS TO BE ISSUED FOR THE CONSTRUCTION OF CERTAIN TOWN BUILDINGS WERE NOT REJECTED WITHIN THE MEANING OF THE CONTROLLING STATUTES; THEREFORE THE TOWN WAS REQUIRED TO SET UP THE PERMISSIVE REFERENDUM FOR NOVEMBER 2023 (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the Town Clerk did follow the statutory procedure for rejecting the petitions for a permissive referendum on bonds to be issued to fund the construction of certain Town road-maintenance buildings. Therefore the town was obligated to set up the permissive referendum:

We need not … decide whether the Town Clerk acted beyond the scope of her authority in rejecting the referendum petitions prior to their filing because, contrary to respondents’ contentions, the subject referendum petitions were received and accepted for filing by the Town Clerk on October 11, 2022 … . The record contains a receipt of filing stating that the Town Clerk “received from [petitioner] three petitions” which were identified by name in the receipt. The receipt issued by the Town Clerk also bears both a signature and a date stamp indicating that the petitions were received for filing … . The receipt issued and signed by the Town Clerk did not constitute a legal rejection of the petition within the contemplation of Town Law § 91 and, as a matter of fact, was not so intended by her to be a rejection since she stated in her own affidavit that she subsequently reviewed the filed petitions with both the Association of Towns of the State of New York and the town attorney and consulted with them regarding the petitions’ handling. Matter of Long v Town of Caroga, 2023 NY Slip Op 04352, Third Dept 8-17-23

Practice Point: Here the statutory requirements for the rejection of petitions for a permissive referendum on bonds to be issued for the construction of town buildings were not met. To the contrary, the Town Clerk accepted the petitions, and the town must set up the permissive referendum for November 2023.

 

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