A federal judge in Manhattan ruled late Monday that thousands of absentee ballots missing postmarks must be counted, forcing election officials across New York State to reexamine previously invalidated ballots, and offering a glimmer of hope to candidates refusing to concede in the face of narrow margins.
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Judge Analisa Torres ordered the New York State Board of Elections to direct all local Boards to count otherwise valid absentee ballots missing postmarks as long as they were received by June 25th, two days after the primary.
In her ruling, Torres criticized the State’s argument that it did not intentionally disenfranchise voters. “They claim that the asserted injuries are, at most, a result of the [United States Postal Service’s] inadvertent failure to postmark certain ballots,” she wrote. “The Constitution is not so toothless. When voters have been provided with absentee ballots and assured that their votes on those ballots will be counted, the state cannot ignore a later discovered, systemic problem that arbitrarily renders those ballots invalid,” she added.
Requiring valid ballots missing a postmark to be counted “will provide clarity in the face of unexpected and constitutionally significant chaos, and strengthen voters’ faith in the franchise,” Torres wrote.
Listen Brigid Bergin discuss the latest on absentee ballots with Jami Floyd on All Things Considered:
The case was filed on behalf of two candidates and 14 voters who argued that ballots were being unfairly invalidated, through no fault of the voter, because of mistakes made by the Board of Elections and USPS.
One of those candidates, Suraj Patel, trails incumbent Rep. Carolyn Maloney by roughly 3,700 votes in the race for the Democratic nomination for 12th congressional district, which spans portions of Manhattan, Queens and Brooklyn. While this ruling only brings back about 1,200 invalidated votes in this district, Patel issued a statement declining to concede.
“The issues uncovered in our NY-12 election are now bigger than any one candidate or campaign. We’ve said it from the beginning: our election had issues, but they were not ones of voter fraud, as Donald Trump baselessly claimed from the White House podium today,” said Patel. “Our election was strife with systemic voter disenfranchisement. And tonight, a federal judge agreed with us.”
While the scope of the ruling was limited to ballots missing a postmark received by June 25th, Judge Torres included a footnote in her decision that would allow candidates who could show that the tally of ballots on additional dates could change the outcome of a race to file an appeal with the court. “The Court, upon application of a candidate aggrieved by the count, shall consider what remedy, if any, is available,” she wrote.
Last week, Judge Torres presided over a two-day evidentiary hearing where she heard from city, state, and USPS witnesses. The testimony revealed how the two agencies struggled to meet a ten-fold increase in demand for absentee ballots, under tight timeframes and with staffers who had contracted COVID-19.
Based on that testimony, Torres concluded that there was strong evidence that USPS locations in Brooklyn handled absentee ballots differently from the postal service locations in the other boroughs. “[A] significant number of Brooklyn ballots that should have been postmarked were not,” she wrote.
“Despite the postal service’s best efforts, there is uncontroverted evidence that thousands of absentee ballots for the June 23 Primary were not postmarked. This could be due to a number of human or mechanical errors,” she wrote.
While all absentee ballots were supposed to be routed to one processing center in Manhattan, “some return envelopes may lack postmarks because, contrary to policy, the envelopes were not routed to the Morgan Facility, or were misdirected and did not pass through the automatic cancellation machinery. It is also possible that the automated process failed to cancel some ballot envelopes because they were folded over, stuck together, or otherwise avoided the stamping process for mechanical reasons.”
But Torres noted that even if the errors were accidental, voters’ rights were still being infringed upon.
Her ruling applies statewide since there was evidence that the issue was not restricted to New York City. Torres cited testimony from Robert Brehm, NYSBOE’s Co-Executive Director, who said at least ten county boards of elections outside of New York City also invalidated absentee ballots for lack of a postmark, and that data does not even include input from the state’s other largest counties: Nassau, Westchester, Erie, Monroe, Richmond, Onondaga, Rockland, and Albany.
New York City Board of Elections officials were expected to certify election results at their weekly commissioners meeting on Tuesday. New York City Board of Elections spokesperson Valerie Vasquez-Diaz declined to comment about the decision Monday night.
The New York State Board of Elections has not yet responded to a request for comment.
UPDATE 4:55 p.m.:
The City Board of Elections officials moved to certify the election results from the June primary on Tuesday, but with a caveat -- the state plans to appeal the decision.
“Given the totality of the circumstances here, we understand the desire to protect the rights of voters,” stated Commissioner and Co-Chair, Douglas A. Kellner. “However, this will place a tremendous burden on the local boards of elections as they are preparing for the November general election and is highly unlikely to change the results in any contest.”
“There must be uniform rules in the administration of elections and those rules are set by the Legislature in the Election Law,” said Commissioner and Co-Chair, Peter S. Kosinski. “Those laws governing the canvassing of ballots were followed by all the local board of elections. To establish a precedent that says the State Board has the authority to supplant the enacted laws of the Legislature at any time is dangerous and threatens to undermine the orderly administration of elections. Appealing this decision is an effort to restore order to the process. The Legislature has made changes to the Election Law in the wake of the June Primary and that is the proper way to make changes in the conduct elections.”
Plaintiffs’ attorneys J. Remy Green and Ali Najmi said they are prepared to take their case to the higher courts. But Najmi offered a warning to the governor against taking that action.
“Governor Cuomo, your legacy is on the line. If you appeal this, you'll lose in the appeal and you will be another second round suppressor of votes,” said Najmi. He added, “We need to count these votes, certify this election, and get ready for November. And that's the most important thing here.”
Despite the plans to appeal, the Board of Elections ordered staff at all the borough offices to prepare to count any ballots that would fall under the judge’s order, pending guidance from the state.
