Monday evening, Governor Andrew Cuomo posted his sixtieth Executive Order during this state of emergency. Executive Order 202.58, issued on August 24, 2020, suspends or modifies certain laws, statutes, rules and regulations as well as issues certain directives, all of which are designed to address the COVID-19 crisis. Specifically, the actions undertaken in Executive Order 202.58 focus on the upcoming 2020 election and New Yorkers’ voting rights. Executive Order 202.58 is effective from August 24, 2020 through September 23, 2020. A copy of Executive Order 202.58 can be found here.
- Executive Order 202.58 undertakes significant efforts to inform New York voters about the upcoming elections and ensure that they are prepared for them. To that end, Executive Order 202.58 obligates all county Boards of Elections and the City of New York Board of Elections to send an informational mailing to every registered voter by September 8, 2020 that contains the following information:
- The dates, hours, and locations for early voting in such voter’s county, including the early voting location for which the voter is assigned, if applicable;
- Information regarding how to apply for an absentee ballot, including the opportunity to apply online or by phone, and including the deadline for requesting an absentee ballot;
- Information regarding the date and hours for the November 3, 2020 general election, and the voter’s election day polling place location;
- Information regarding how the voter can look up their registration status;
- An explicit reminder or communication of the opportunities to vote prior to Election Day, including application for an absentee ballot and early voting options; and
- Expected mail times, if a voter chooses to request an absentee ballot.
- Executive Order 202.58 also requires all county Boards of Elections and the City of New York Board of Elections to submit staffing plans and any staffing needs for early voting and election day poll site operations, as well as post-election canvass of results, to the state Board of Elections no later than September 20, 2020, to provide adequate time for the state Board of Elections to assist as feasible.
- In addition, Executive Order 202.58 mandates that all county Boards of Elections and the City of New York Board of Elections take all steps possible to count ballots as soon as possible, including reviewing absentee or military ballot envelopes prior to Election Day to ensure efficient and timely canvassing of ballots, including establishing objections by the Board to ballot envelopes prior to Election Day, any reporting of affidavit ballots by counties to the state board to compare against absentee ballots must be completed 48 hours after the election.
- Finally, Executive Order 202.58 directs the New York State Board of Elections to develop a uniform envelope for absentee ballots for use by local Boards of Elections by September 8, 2020. Such envelope shall establish where a voter must sign to be valid. All local county Boards of Elections and the City of New York Board of Elections must use such uniform envelope for absentee ballots developed by the State Board of Elections.
SUPENDED OR MODIFIED LAWS, REGULATIONS AND CODES
As with most prior executive orders, Executive Order 202.58 also suspends or modifies certain laws, codes, rules and regulations to aid in New York’s efforts to combat the COVID-19 crisis this time through September 23, 2020. Executive Order 202.58, by modifying or suspending the applicable laws, codes, rules and regulations and municipal codes, to the extent necessary:
- Suspends sections 15-120 and 15-122 of the Election Law, sections 2018-a and 2018-b of the Education Law, and section 84-a of the Town Law, as well as any provision of law related to a special district election taking place prior to November 3, 2020, and not administered by a County Board of Elections to the extent necessary to include the potential for contraction of the COVID-19 virus as an illness for purposes of request or receipt of an absentee ballot;
- Provides that every voter that is in active and inactive status and is eligible to vote in any election on or before November 3, 2020, may be able to request an absentee ballot via phone or internet or electronically; and if such voter requests an absentee ballot, such voter shall be sent an absentee ballot, provided however that each voter shall not be sent more than one ballot pursuant to a phone request, and shall not be required to complete an application either prior to or simultaneously to receiving the ballot.
- Further, the board of elections receiving the telephone request shall maintain a record of such telephone request for an absentee ballot, and may complete the absentee ballot application as such record on behalf of the voter requesting the absentee ballot, provided that no ballot shall be deemed invalid for lack of a complete absentee ballot application for any reason;
- Requires that a board of elections shall provide a five day cure period for any eligible deficiency instead of seven if such absentee ballot is received after November 3, 2020; and further modified to require that a board of election shall first notify any voter of any eligible deficiency within 24 hours of identifying the deficiency by phone or email, if available and shall only mail such notification to the voter if notice to the voter by phone or email is not possible.
- Provides that no cause of action shall be maintained against a board of elections if, for the general election taking place on November 3, 2020, notice is not able to be made within the time period set forth in New York Election Law section 9-209(3) after a good faith effort, and through no fault of the board of elections.
- Allows a board of elections to procure and provide absentee ballot applications, absentee ballots, envelopes, mail notification cards pursuant to this executive order, or any other means of transmitting an absentee ballot application or absentee ballot to voters in accordance with the timeframes set forth in Executive Order 202 or any subsequent Executive Order