There Is Absentee Voting

Fallsburg Future presents a 2 part article on the laws and regulations governing Voter Registration and Absentee Ballots.

Dear Friends and Neighbors

There is another part of this discussion that deserves the same factual scrutiny. It is sometimes assumed that once someone is registered, an absentee ballot simply follows. But New York law does not describe the process that way. Election Law §8-402 states that, upon receiving an absentee-ballot application, the Board of Elections shall determine, through inquiry it considers proper, whether the applicant is qualified to vote and receive an absentee ballot. If the Board is not satisfied that the applicant is entitled to the ballot, it may order an investigation. The statute specifically provides investigative authority and permits the use of subpoenas and oaths when necessary. That means another very simple question can be asked: When an absentee ballot is requested from an address whose residency is questionable, how is that qualification determined? What inquiry is made? What records are reviewed? When does an issue trigger an investigation? And if a registration itself is challenged, how does that information interact with absentee-ballot eligibility? Again, these are not accusations. They are questions about whether the process required by law is actually operating as the law says it should.

Who is legally qualified to vote and are those qualifications being determined consistently? That is a much more important question. Because if one voter is required to establish actual residency while another person's claimed address is simply accepted without the same level of scrutiny, the problem is not that one person has more rights than another. The problem is that the standard may not be being applied equally. The same law must govern everyone. That means the Board cannot start with the conclusion and work backward. It cannot treat property ownership as automatic proof of voting residence. It cannot treat seasonal status as automatic disqualification. It cannot substitute an address for an investigation of the facts. And it cannot ignore evidence simply because the evidence makes the determination more difficult. The law requires the circumstances to be considered.

If Election Law §5-104 requires individual circumstances to be considered, does the Board have the personnel, training, procedures and resources necessary to do that? If a challenge is filed under §5-220, what investigative process is actually followed? Is there a written protocol? Are investigators trained to distinguish a legitimate second home from a claimed residence that does not satisfy the statutory definition? Are similar cases evaluated using the same criteria? Are decisions documented sufficiently to show why the Board reached its conclusion? And when a challenge raises a serious factual question, what evidence is enough to resolve it? Those questions should have answers. The law requires an actual determination.
 
What About Tax Residency?
There is an interesting comparison here. New York State income-tax law provides a measurable statutory-residency test: someone who is not domiciled in New York will become a New York tax resident (remove for all of the tax year) for all of the tax year by spending 184 or more days in New York. Voting law is different. It does not currently require 184 days. Instead, it looks at whether the claimed voting residence is a fixed, permanent and principal home and considers intent, physical presence and the surrounding circumstances. That raises a legitimate policy question: Should New York consider establishing a clearer minimum-presence standard for someone claiming a seasonal or second residence as a voting residence? Perhaps 184 days could be considered as one objective benchmark, while still allowing other circumstances to be considered. This would have to be a policy change. It is not the current law. But it is worth asking whether election officials should have a more measurable standard to supplement the existing fact-specific test.

Why This Matters in Sullivan County
This may sound like a narrow election-administration issue. It is not. Local elections determine who sits on Town Boards, County government and other bodies that make decisions affecting land use, zoning, development, roads, taxation, water, wastewater, infrastructure and the future direction of communities. Every legally qualified voter has the right to participate in those decisions. And every voter who casts a ballot must be legally entitled to do so. Those principles are not in conflict. They are the same principle. Protect the legitimate voter and the integrity of the vote. Apply the law equally. That is not partisan or anti-anyone. That is the job.

The Questions Sullivan County Should Be Willing to Answer
If the system is working exactly as it should, these questions should not be threatening. They should be easy to answer.
• What written standards does Sullivan County use when determining voting residence?
• How does the Board document its consideration of the factors listed in §5-104?
• When a registration is challenged, what investigation is actually conducted?
• How often are property records, tax records, vehicle registrations or other relevant
   records reviewed?
• How does the Board determine whether a claimed residence is capable of functioning
   as a fixed, permanent and principal home?
• How are properties with legal occupancy restrictions treated?
• How are duplicate registrations identified and investigated?
• How are absentee-ballot applications evaluated when residency is questioned?
• How many voter-registration challenges have been filed, investigated, sustained or
   rejected?
• How many were placed on challenge lists because an investigation could not be
   completed?
• What training do the people responsible for these determinations receive?
• What State Board guidance governs these investigations?
And perhaps the most important question of all: When two voters present similar facts, are they being judged by the same standard?

The Law Must Mean What It Says.
There is a temptation in any voter-residency dispute to make the discussion about personalities, politics, communities or motives. That is a distraction. The law gives us something much cleaner. A definition of residence. A minimum residency requirement. A list of circumstances the Board may consider. A formal challenge procedure. An investigative requirement. Rules governing absentee-ballot qualification. And criminal statutes addressing knowing false registration. Those are the facts.

So let the facts, records and evidence be examined. Let the same standard be applied to everyone. And when a legitimate question is raised, answer it with evidence, not with assumptions, political arguments or accusations against the person asking the question. We should not be asking for more voters or for fewer voters. We should be asking for the legally qualified voters and for a system capable of proving that it has applied the law fairly. That is the standard. And if Sullivan County and New York are doing what the law requires, there should be nothing controversial about asking them to show us how. The people asking the uncomfortable questions are not the threat to the system. They are the warning system. The canary does not cause the problem in the mine. It tells you to look. And when the law itself tells election officials what they are supposed to examine, asking whether they actually examined it is not an attack on democracy. It is accountability. The right to vote is fundamental. So is the responsibility to get the rules right.

Fallsburg's Future is a community network of concerned Fallsburg residents established in January 2016. Its Mission is to help guide the urban development of the town of Fallsburg and its five hamlets, to promote its sustainable economic development, protect the fragile beauty of its natural habitats and enhance the opportunities and quality of life for all its residents and visitors. We hope to curb the suburban sprawl that is threatening to overwhelm the town’s physical infrastructure and destroy the natural beauty that the area depends on for its future development. See us on Facebook and our website Fallsburgsfuture.com.