High court approves counting disputed ballots when inspectors deadlock
ALBANY, N.Y. (NEXSTAR) — On Halloween, the Court of Appeals—the highest court in New York—ruled that Election Law §9-209 (2)(g) is constitutional. It requires that a ballot be counted if a local, bipartisan board of ballot reviewers can't agree on its validity.
The law promotes equal representation, prevents delays in reporting results, and features sufficient and unbiased oversight. That's according to the latest decision in the case, which stretches back to 2021, when the state passed Chapter 763 to speed up processing absentee ballots.
The plaintiffs argued that the law violated the equal representation requirement in Article II, Section 8 of the New York Constitution, which mandates equal bipartisan involvement in election boards. They claimed that §9-209 (2)(g) undermines this principle by allowing one member of a two-person team to decide whether a ballot is valid, potentially bypassing judicial oversight on disputed ballots. They argued this gives excessive power to the legislative branch and unfairly restricts courts from intervening in ballot challenges.
The law was initially challenged in New York's Supreme Court, which agreed that §9-209 (2)(g) violated equal representation and limited judicial review. However, the court allowed the rest of Chapter 763 to stand. The Appellate Division, however, overturned this ruling, explaining that equal representation doesn’t mean unanimous agreement, just the same number of people from the opposing parties. Since §9-209 established bipartisan inspectors with evenly split powers, the Appellate Division found the law constitutional.
The Court of Appeals upheld that decision. The Constitution makes no case for unanimous agreement, the higher court clarified, and any member of the perfectly proportioned board shares the same authority to declare a ballot invalid for any defect—like a missing signature or a late postmark. Should they disagree, the tie goes to the runner, and the ballot counts.
The Court of Appeals dismissed a related appeal from Senate and Assembly Republican leaders. The GOP—the minority party in both houses of New York's legislature—supported the challenge, arguing that it favored majority power in disputes. They argued that all of Chapter 763 was unconstitutional, limiting minority influence in close elections. But the court decided they lacked standing, unable to prove any direct harm from the prior ruling.
The court also addressed concerns about judicial review, noting that election laws still make plenty of room for ballot challenges. Candidates can get a court-ordered injunction, or the attorney general can contest the results of a race.
Take a look at the October 31 ruling below: