The case is Price v. New York State Board of Elections, decided on August 22. The plaintiffs include a candidate for county committee, a committee voter and the Albany County Republican Committee. The Second Circuit (Hall, Parker and Livingston in dissent) accepts the argument that the rule against absentee ballots burdens these plaintiffs in the exercise of their associational rights, either in running for the committee or selecting candidates of their choice. But the Second Circuit rejects the district court's holding that rational basis review applies in assessing the constitutionality of this omission.
The distinction between rational basis and heightened judicial review makes all the difference. The government nearly always wins under rational basis review because it can then defend the challenged provision on the basis of any justification whatsoever. Under heightened scrutiny, in contrast, the government needs a good reason to justify the restriction on associational rights. As the Court of Appeals summarizes the issue:
The defendants assert that pure rational basis review should be utilized in this case in reviewing the constitutionality of Election Law § 7-122. They are incorrect. Under [the] “flexible standard," the court must actually “weigh” the burdens imposed on the plaintiff against “the precise interests put forward by the State,” and the court must take “into consideration the extent to which those interests make it necessary to burden the plaintiff’s rights.” By contrast, under rational basis review, the plaintiff must “negative every conceivable basis which might support” the challenged law, even if some of those bases have absolutely no foundation in the record.
The Court holds that the plaintiffs' burdens under the prohibition against absentee ballots are "not trivial." The Court makes this determination because the record does not explain how, exactly, the plaintiffs' rights were burdened. Were they in the hospital at the time of the election, or were they merely on vacation?
The state does not advance a sufficiently convincing reason for the restriction. Or, as the Court puts it, "the State has put forward no substantive justifications for the restrictions imposed by Election Law § 7-122. Instead, the State relies exclusively on its contrived argument that tabulating absentee ballots could cause a delay in finalizing election results, which could interfere with the ACRC’s ability to nominate a candidate in situations where quick action was required." In other words, counting absentee ballots could interfere with the orderly functioning of the party -- nominating and appointing officeholders -- when time is of the essence.
This justification does not work for several reasons. First, the Albany County Republican Party is a plaintiff and is therefore willing to take the risk outlined by the State. Second, the possibility that absentee ballots would actually disrupt the orderly functioning of the political party is remote, and in any event, most of these elections are uncontested anyway. In addition, in case of an emergency, the political party's committee chair can make the appropriate nomination. The Court concludes, "the State has burdened the plaintiffs’ rights for a reason that is exceptionally and extraordinarily weak. While the burden on the plaintiffs’ rights is not large, and while our review is accordingly deferential, we nonetheless conclude that the state’s proffered reasons have such infinitesimal weight that they do not justify the burdens imposed."