Across New York, school districts are grappling with the Governor’s recently released Executive Order 202.26, which provides procedures for the annual school budget and election process (“Annual Vote”) during COVID-19. For the first time, all Annual Votes will be conducted on June 9, 2020, and entirely by absentee ballot. Under the Executive Order, school districts must mail every “eligible voter” an absentee ballot with a postage-paid return envelope for them to participate in their district’s Annual Vote.
The Executive Order does not define “eligible voter”; however, the prevailing interpretation is that “eligible voter” is the same as a “qualified voter” under the Election Law. A “qualified voter” under the Education Law must be at least 18 years old, a U.S. citizen, a resident of the school district for at least 30 days prior to the election, and not otherwise prohibited from voting under Section 5-106 of the Election Law. The Executive Order leaves many questions for school districts unanswered, including how to overcome the numerous logistical issues raised by the EO -- such as, how costs will be covered under already strained school district budgets?
To be sure, complying with the EO will require schools to incur significant costs. Postage for both mailing out absentee ballots and for including pre-paid return envelopes for every qualified voter within the district is just one example. The cost of printing the ballots is another. Moreover, the EO does not specify whether school districts are permitted to print ballots in-house or are required to use an approved vendor.
The process of tallying votes will also be costly, as districts are exploring whether voting machines are able to process absentee ballots or if they will require hand-counting (for large districts, the latter could take days). Even the process of identifying qualified voters, as described below, is likely to be an expensive and time-consuming proposition.
In addition to imposing significant costs, the compressed timeframe in which schools must comply with the EO is also placing considerable pressure on school districts to sort through numerous other questions the EO raises. For example, the Executive Order does not specify the date by which absentee ballots must be sent out, so school districts are being encouraged to send out the ballots as early as possible to allow for their timely return. Ballots must be received by district clerks by 5 p.m. on the election date. But printing ballots for every eligible voter will take time – especially if an approved vendor is required, leaving many wondering what happens if this can’t be pulled off in time? Further, military ballots must be transmitted by May 15, but school district budget adoptions are not due until May 21, meaning that ballots would have to be printed and sent before the budget vote.
Districts also need to identify qualified voters within their districts prior to mailing out ballots, but the EO did not provide concrete guidance to assist districts with this process. Districts that use personal registration (i.e., a district-adopted procedure in which eligible voters must register to vote) can use last year’s voting records to identify eligible voters. Unfortunately, this doesn’t guarantee that every currently-qualified voter within the district will be identified. Some districts that feel comfortable are permitting in-person registration at specified times. Other districts are directing their voters to register with the board of elections through the Department of Motor Vehicles’ website.
Districts that utilize poll registration (i.e., allowing all eligible voters to vote without formal registration) will have more difficulty identifying qualified voters, and are finding themselves using other methods, such as comparing households that receive the required budget notice with local county election rolls to identify the eligible voters in each household. The Executive Order requires every household in the district to receive a postcard notice providing the election date, date of the budget hearing, and the definition of the qualified voter. To assist with determining the number of absentee ballots to mail, districts may want to consider including within that notice instructions for providing to the district the names of each eligible individual within that household.
In addition to the above obstacles, each school district is likely experiencing other unique difficulties in complying with Executive Order 202.26. Harris Beach continues to assess the implications of this Executive Order and will monitor for any additional guidance issued that sheds light on these and other outstanding issues. In the meantime, please contact the Harris Beach attorney with whom you usually work with any questions related to these procedures.
