Supreme Court, Warren County, September 19, 2022

The Glennon Law Firm, P.C., Rochester (Peter J. Glennon and Daniel R. Suhr, of the Illinois bar, admitted pro hac vice, of counsel), for plaintiffs.

Barclay Damon LLP, Albany (Thomas B. Cronmiller and Daniel J. Martucci of counsel), for Warren County Board of Elections, defendant.

Letitia James, Attorney General, Albany (Sarah L. Rosenbluth of counsel), in her statutory capacity under Executive Law § 71.

Kevin G. Murphy, Deputy Counsel, Albany, for New York State Board of Elections, defendant.

Robert G. Behnke, County Attorney, Binghamton, for Broome County Board of Elections, defendant.

Three motions are pending before the court: plaintiffs' order to show cause dated August 18, 2022, which seeks a preliminary injunction precluding defendants Warren County Board of Elections and New York State Board of Elections from distributing or accepting absentee ballots from voters who are unable to appear at their polling place due to the risk of contracting or spreading a disease that may cause illness to the voter or to other members of the public; the pre-answer cross motion of defendant Warren County Board of Elections, which seeks dismissal of plaintiffs' complaint; and the pre-answer cross motion of the Attorney General of the State of New York, as intervenor pursuant to Executive Law § 71, which also seeks dismissal of plaintiffs' complaint.

Plaintiffs commenced this action for declaratory judgment and injunctive relief by filing a summons and complaint on July 20, 2022. In essence, plaintiffs contend that the 2020 legislative amendments to Election Law § 8-400 to expand access to absentee voting due to the COVID-19 pandemic and the further legislative amendment in 2022 to extend the effectiveness{**77 Misc 3d at 299} [*2]of the 2020 amendment to December 31, 2022, are contrary to and violate New York Constitution, article II, § 2 and seek a declaration to that effect.

Oral argument on the motions was conducted on September 6, 2020.^[FN1]

By way of background, New York Constitution, article II, § 2 reads:

"The legislature may, by general law, provide a manner in which, and the time and place at which, qualified voters who, on the occurrence of any election, may be absent from the county of their residence or, if residents of the city of New York, from the city, and qualified voters who, on the occurrence of any election, may be unable to appear personally at the polling place because of illness or physical disability, may vote and for the return and canvass of their votes."

In 2020, in response to the COVID-19 pandemic, the New York State Legislature enacted an amendment to Election Law § 8-400 (1) (b), which expanded the definition of "illness" therein. As relevant here, the statute reads as follows.

"[F]or purposes of this paragraph, 'illness' shall include, but not be limited to, instances where a voter is unable to appear personally at the polling place of the election district in which they are a qualified voter because there is a risk of contracting or spreading a disease that may cause illness to the voter or to other members of the public."

The legislation included a January 1, 2022 sunset provision. In 2022, the legislature extended the effectiveness of the 2020 amendment to Election Law § 8-400 (1) (b) to December 31, 2022. Plaintiffs claim that this expanded definition is inconsistent with the definition of the term "illness" in New York Constitution, article II, § 2, which they claim is more restricted.

Warren County Board of Elections and the Attorney General advance numerous arguments in opposition to plaintiffs' request for preliminary injunctive relief and in support of their motions to dismiss. Foremost among these arguments is that Election Law § 8-400 (1) (b) was previously ruled to be{**77 Misc 3d at 300} constitutional by the Appellate Division, Fourth Department in Ross v State of New York (198 AD3d 1384 [4th Dept 2021]), in which the constitutionality of Election Law § 8-400 (1) (b) was challenged on substantially the same grounds that are presented here.^[FN2] In Ross, the Fourth Department, "for reasons stated at Supreme Court," affirmed an amended judgment entered in Niagara County, which held that the 2020 amendments to Election Law § 8-400 are constitutional (id. at 1384, affg 2021 NY Slip Op 32094[U] [Sup Ct, Niagara County 2021, Sedita, J.]). Defendants contend that Ross is binding precedent, which precludes this court from reaching a different outcome.

"The doctrine of stare decisis requires trial courts in [the Third Department] to follow precedents set by [other Departments of the Appellate Division] until the Court of Appeals or [the Third Department] pronounces a contrary rule" (Mountain View Coach Lines v Storms, 102 AD2d 663, 664 [2d Dept 1984]). Notwithstanding plaintiffs' arguments to the contrary, the [*3]court finds Ross to be binding precedent. Under the doctrine of stare decisis, the court is bound by the decision in Ross. The holding in Ross compels the dismissal of the instant complaint as against all defendants and the denial of plaintiffs' motion for a preliminary injunction.

Accordingly, it is hereby ordered that plaintiffs' application for a preliminary injunction is denied; and it is further ordered that the motions of defendant Warren County Board of Elections and intervenor Attorney General of the State of New York are granted, and the complaint is dismissed as against all defendants.