Lentol proposes vote-by-mail for New York’s presidential primary

New York state may be on “pause” with nonessential businesses closed, but as of now, the April 28 Democratic presidential primary is still on. If it remains that way, it would be the first election held in the state since the coronavirus outbreak began. 

So Assemblyman Joseph Lentol has introduced an unusual piece of legislation meant to allow every registered Democrat in the state to vote by absentee ballot to ensure that voting takes place while limiting social contact. 

Lentol is not the first person to think of absentee voting as a means to safely conduct upcoming elections. State Sen. Alessandra Biaggi proposed legislation that would add “public health risk” as a reason to apply for an absentee ballot, thus opening up the possibility to far more people. And Gov. Andrew Cuomo signed an executive order effectively allowing any person who applies for an absentee ballot to receive one for elections happening in March (although every election this month has since been postponed). 

Lentol’s legislation is more far-reaching than either proposal. Rather than expanding the pool of people eligible for absentee ballots, his measure would effectively mandate vote-by-mail for the presidential primary in April. According to the draft bill, local boards of elections would be required to preemptively mail out ballots to every registered Democrat in their jurisdiction in April. This way, it’s not on the voter to get a ballot and nobody would feel required to vote in person. (President Donald Trump is running unopposed, so there is no Republican primary.)

Normally, it would take a constitutional amendment to do away with the criteria to apply for an absentee ballot, which is why Biaggi’s bill would simply add a new provision. But Lentol told City & State that he thought the state of emergency in New York lends some leeway for the legislation he’s introduced. “We’re actually going to call the bill an emergency ballot, which is different from an absentee ballot,” Lentol said, although the bill does use the word absentee. “I think we’re on safe ground to provide for an absentee-ballot-like program to vote in a presidential primary.” However, Lentol said that it’s possible that a judge might disagree with him.

That seems like a real possibility, as the bill reads more like an executive order than a typical piece of legislation. It doesn’t actually propose any statutory changes to the existing election law, simply stating an edict based on emergency authority. Even Cuomo’s executive order is an interpretation of the “temporary illness” provision that enables one to receive an absentee ballot – it reads that “potential contraction of COVID-19” consitutes a valid temporary illness. But the unprecedented nature of the current crisis makes it unclear whether Lentol’s interpretation of emergency powers is valid.

It’s also unclear what would happen to polling sites if Lentol’s bill passed. The legislation includes a clause that says the state Board of Elections could create any rules needed to implement the mail-in vote program, which could theoretically include not opening physical voting locations. The agency did not return a request for comment about this possibility. 

Although the governor has resisted the idea, saying in a recent press conference that he has given “no thought about postponing an election,” that could change if pressure increases enough. Already, at least two states that originally were scheduled to hold primaries on April 28 as well – Maryland and Connecticut – have decided to postpone them until June. Given the speed at which decisions are made amid the pandemic, Cuomo might announce he has changed his mind at any moment. And if U.S. Sen. Bernie Sanders drops out, leaving only former Vice President Joe Biden as the only Democratic candidate, the election would be moot anyway.

Still, if Cuomo doesn’t change his mind and Sanders stays in, Lentol’s bill is perhaps the safest public health option to conduct the election compared to Biaggi’s bill or even Cuomo’s executive order if extended. And though it may be unprecedented, these are unprecedented times.