New York is the state many conservatives love to hate because of its stridently anti-Second Amendment laws and public policies (most recently, reflected in a new law undermining the recent U.S. Supreme Court’s Bruen decision that declared unconstitutional the state’s century-old Sullivan Law that made it next to impossible for a law-abiding citizen to obtain a concealed carry permit).
However, an Oct. 21 decision from Saratoga County trial court Judge Dianne Freestone, reminds us that even in the dark “blue” state of New York, reason can prevail, despite the overwhelmingly Democrat state legislature, the ultra-liberal governor, and the far-left wing state attorney general.
The judge’s decision resulted from a constitutional challenge to an absentee voting law passed by the legislature in Jan. 2022. That legislation extended and expanded statewide absentee voting far beyond existing provisions in the New York Constitution — even though New Yorkers had overwhelmingly rejected this proposal in a Nov. 2021 referendum. The legislature was not content to stop there.
Section 7(j) of the January 2022 legislation, for example, arrogantly robs the courts of their fundamental power to hear and decide challenges to improperly cast votes: “In no event may a court order a ballot that has been counted to be uncounted.”
Although the state of New York has – unsurprisingly — appealed Judge Freestone’s ruling, the 28-page opinion is remarkable in its lucidity and boldness.
For example, the judge’s explanation of absentee voting in the state presents in sharp focus the arrogant manner by which former Gov. Andrew Cuomo and the legislature sought to expand absentee voting far beyond what was provided for in the prior law and existing constitutional provisions.
As detailed in the court’s opinion, the narrow 1955 New York law authorized absentee voting by individuals suffering from an illness or a physical disability which prevented them from voting on Election Day. Cuomo and his legislative cohorts expanded it during the COVID-19 pandemic “emergency” to allow any voter who claimed any undefined “illness” to vote absentee.
New York Democrats proposed a constitutional amendment in Nov. 2021 that would have opened the floodgates to virtually unlimited and unchecked absentee voting. As noted in Judge Freestone’s recent opinion, New York voters overwhelmingly shot down that measure. According to the judge, this correctly reflects the fundamental principle underlying the state Constitution, that “while there is a constitutional right to vote, there is no constitutional right to an absentee ballot.”
Undeterred by that 2021 electoral defeat, the Democrat-controlled legislature extended the COVID “emergency order,” allowing broad absentee balloting through the end of 2022 because of further, undefined “threats” to peoples’ health. The judge minces no words in her opinion, referring to the “alarmist statistics of rising incidences of COVID-19 infections and the collective phantom menaces of Monkey Pox and Polio looming.”
As Judge Freestone also notes poignantly, expanding absentee voting for “health” reasons, as New York did in the 2022 legislation, is disingenuous and hardly can be considered “temporary.” The state’s political leaders could consider the various health “menaces” in New York cites to be perpetual potential health dangers. The government’s actions are, according to Judge Freestone, “an Orwellian perpetual state of health emergency” that cannot stand.
The New York legislature and governor have attempted by these actions to expand voting far beyond what the law and the state Constitution provide; rendering their actions invalid as a matter of law according to Judge Freestone.
In trying to wall off the court’s power to review any challenge to any vote once “counted” according to their unconstitutional provisions, these New York Democrats have shown their true, corrupt colors and once again thumbed their nose at the rule of law and the will of the people.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.