New York has had a lousy track record on voter participation. Until recently, the state ranked at or near the bottom of the nation in voters turning out at elections. Since 2019 a raft of new laws has been approved that follow the best elections practices of other states. For example, New York is now one of 46 states that allows early voting, with voters able to go to a limited number of polling places to cast their ballots before Election Day.

These new laws have boosted voter turnout relative to the rest of the nation. New York, once at the back of the voting pack, has moved up dramatically—although it still falls below the national average.

As a result, New York voting reform advocates continue to push measures, large and small, to adopt best practices found in states with better voter turnouts.

One of those proven best practices is allowing for broad use of voting by mail. Voting by mail permits voters to submit their ballots through the postal service instead of going to a polling place.

In all-mail elections, all registered voters are sent a ballot in the mail. The voter marks the ballot, puts it in a secrecy envelope or sleeve and then into a separate mailing envelope, signs an affidavit on the exterior of the mailing envelope, and returns the package via mail or by dropping it off. Ballots are mailed out ahead of Election Day, and thus voters have an “election period,” not just a single day, to vote. This system is also referred to as “vote by mail.”

The practice is used across the nation. Nearly half the states allow some form of all-mail elections. It’s not just the states: For years, military personnel have voted by mailing in their ballots with few issues.

Here in New York, we have had some recent experience with voting by mail. Under the provisions of the New York State Constitution, mail in votes may be requested and cast by those who affirm they have an illness or will be traveling on Election Day. During the COVID pandemic, voters were allowed to use this provision if they were concerned about contracting illness, or if they were concerned that they may transmit it.

With the end of the pandemic emergency, that option was taken away. The only option available to voters is if they are sick or traveling. That could change, however, under legislation approved last week.

Under that legislation, anyone who is choosing to vote during New York’s early voting period, can request a mail-in ballot. The voter will not need an excuse; they can simply choose to vote by mail during the early voting period, instead of going to a polling place.

However, once Governor Hochul signed the legislation into law, opponents filed suit to stop its implementation. Their argument is based on the results of a 2021 public referendum that asked voters whether New York’s Constitution should be changed with regard to absentee ballots. As mentioned earlier, the Constitution only allows a voter to obtain an absentee ballot if they are ill or traveling.

The rationale for the question being on the ballot in the first place was in reaction to the COVID pandemic. It was widely viewed that voters preferred the option of requesting an absentee ballot without an excuse. That ballot question, however, was defeated, so the status quo stayed in place.

This new measure is not based on a change to the state Constitution. It is focused on the early voting period—a topic not addressed in the Constitution. The Constitution leaves decisions on how voting should occur to the Legislature and governor. The Constitution solely addresses the absentee issue, specifically placing a procedural limit on that constitutional right.

Opponents argue that the newly approved legislation is simply an end run around the Constitutional restriction on absentee ballots. Supporters argue that it is, in fact, addressing a different issue. The opponents do raise an important question: If voters oppose a measure to make it easier for a voter to obtain an absentee ballot, does that mean nothing can be done in New York to allow mail in ballots, short of a constitutional change—no matter how good of an idea?

Voting by mail is a demonstrated way to boost voter participation. The evidence in other states is solid on that question. If opponents prevail, the only way voters can have easy access to voting by mail is if approved through a constitutional amendment. New York’s courts will have the final say on that question.