On Wednesday, as the New York City Board of Elections begins counting a record number of absentee ballots citywide, advocates and lawmakers are pleading with Governor Andrew Cuomo to intervene to protect voters so their ballots aren’t tossed out through no fault of their own. But so far, Cuomo’s office has refused to act.

Under election law, absentee ballots mailed back to the Board of Elections needed to be postmarked by June 23rd and received by June 30th to be counted. Here in New York City, elections officials say they will follow that law unless directed otherwise—and that means throwing out ballots that the post office failed to properly postmark.

As of July 7th, the BOE has only received 408,596 absentee ballots of the 778,184 that were distributed.

In a letter circulated by the reform-oriented New Kings Democrats that cites Cuomo’s use of emergency powers to move the presidential primary and expand access to absentee ballots during the COVID-19 pandemic, a growing coalition of community organizations, political clubs, elected officials and candidates urge him to issue another executive order to ensure all ballots received at the Board of Elections by June 30th are counted, even if the envelope is missing a postmark.

They also reference a recent Gothamist/WNYC report and warn about the implications for the general election in the fall.

“With the November presidential election rapidly approaching, voters across the country are wondering whether vote-by-mail and mass absentee voting can be conducted fairly. What Governor Cuomo does next has profound implications for democracy in our city, state and nation,” the letter states.

This idea for how to address problems with absentee ballots is not new. Good government groups have been warning for months about the risks posed by missing postmarks and other technicalities that could eliminate a vote, especially in close contests. In an earlier letter to the governor dated June 22nd, a coalition of eight election reform groups proposed the same executive order.

There was a follow up conference call between voting advocates and staff from the Cuomo administration on June 29th. Jarrett Berg, an attorney and co-founder of the nonpartisan advocacy group VoteEarlyNY, said he invoked the “mailbox rule” during the call.

“When a voter relinquishes control over something—they put it in the mailbox—the government has custody of that,” Berg said. Since the voter no longer has control of the ballot at that point, “at a minimum there should be a presumption that if there is no postmark or the post mark is illegible, but it’s received by the 30th, that it should be presumed valid unless someone wants to present compelling evidence of fraud,” he added.

Listen to reporter Brigid Bergin's radio story for WNYC:

Common Cause New York, which has been critical of the governor's use of executive orders during the pandemic, also signed the June 22nd letter and joined the conference call with Berg and Cuomo officials.

“The executive order we were asking for would course-correct for this past election, and looking ahead, we would like to see executive powers relaxed and rebalanced,” Sarah Goff, Common Cause New York Deputy Director, told Gothamist/WNYC.

When asked for a response and whether the administration was monitoring the postmark issue, the governor's spokesperson Rich Azzopardi sent a comment, which he also attached as an audio message.

“So the same self appointed and self named good government groups who want to strip the governor of his executive authority mid-pandemic‎ now want him to use his executive authority to achieve one of their policy goals? Excuse me: I just went crosseyed,” said Azzopardi, who recently wrote a response to a Watertown Daily Times editorial defending the administration’s use of emergency powers.

Azzopardi did not respond to follow up questions about whether the administration was monitoring any of the issues related to missing or illegible postmarks and how this might inform what decisions are made ahead of the election in November.

At the same time, elected officials are also asking Cuomo to intervene.

Brooklyn Assemblymember Rodneyse Bichotte said she called Cuomo's office on Tuesday to urge him to act. Bichotte, who is also the head of the Brooklyn Democratic Party, said she already knows of a batch with “a few thousand” absentee ballots that were delivered to the Brooklyn Board of Elections office without postmarks ahead of the election, and she wanted to make sure those ballots get counted, along with any absentee ballots received through June 30th.

“It's no fault of the voter, they should not be deprived of getting credit for voting and their vote should count,” Bichotte said.

State Senator Liz Krueger from Manhattan said her office has also been hearing from voters who were unable to get their absentee ballots postmarked at the post office, along with others who reported getting their ballots late. Krueger said she’s thinking about what legislative changes needed to be made to avoid the same kind of mistakes in November.

At a minimum, Krueger said, “It’s all sort of crying out for building some more time into the mail system.”