Federal judge orders state to count absentee ballots without postmarks
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A state BOE worker prepares to count ballots on July 22. AP Photo/John Minchillo
By David Brand
Update: Aug. 4, 5:05 p.m. — The BOE will appeal the decision.
A federal judge on Monday ordered the New York state Board of Elections to count thousands of absentee ballots that were disqualified because of missing postmarks, ruling in favor of two primary candidates and more than a dozen voters whose mail-in votes did not count in the June 23 election.
Judge Analisa Torres ruled that the BOE must count all ballots received by June 24 whether or not there was a postmark, as well as ballots received by June 25 that were postmarked by June 23 or earlier. The decision applies statewide.
The plaintiffs included Suraj Patel, who trails incumbent Rep. Carolyn Maloney in New York’s 12th Congressional District, and Emily Gallagher, who defeated 47-year incumbent Assemblymember Joe Lentol for a north Brooklyn Assembly seat.
Manhattan federal Judge Analisa Torres knocked the state’s position that mail-in ballots without postmarks do not count and that the BOE did not intentionally seek to disenfranchise voters.
“The Constitution is not so toothless,” Torres wrote in her decision. “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.”
For the first time, nearly all New Yorkers were eligible to vote by mail based on an executive order issued by Gov. Andrew Cuomo. The BOE struggled to meet the demand for hundreds of thousands of additional ballots across the state, however.
In the Democratic primary for NY-12, roughly 20 percent of ballots were invalidated.
President Donald Trump has honed in on the mail-in ballot issues in the NY-12 election to try to discredit a large-scale absentee ballot effort ahead of the November presidential election, suggesting that thousands of votes had gone missing. They were not missing, but were instead invalidated because of the postmark issue or because they were received late by the BOE.
“Our fight is the exact opposite of Donald Trump’s,” Patel said during a press conference Tuesday. “We’re fighting against voter disenfranchisement.”
Despite the court’s decision, Patel is unable to overcome a 3,700-vote deficit. Nevertheless, he has refused to concede because of the legal precedent of the court battle to count every vote. “Nothing less than the future of our country is at stake, and that’s why it’s all the more important that we won an unprecedented injunction,” he said in a statement.
Rep. Carolyn Maloney leads Suraj Patel by 3,700 votes. Patel has so far declined to concede. Photos via the campaigns
Maloney also praised the decision, while calling for Patel to concede. “I am happy that voters in my district will have their votes counted notwithstanding the Postal Services mistake,” she said.
In her ruling, Torres acknowledged the strain on the state board of election and encouraged Congress to “exercise its power to equip states with more flexible — and well-funded — tools to prevent the recurrence of problems like those in this case, and to swiftly resolve vote counting issues which may arise.”
There is a “strong public interest” in an injunction ordering the BOE to count the additional ballots, she continued.
The count will “provide clarity in the face of unexpected and constitutionally significant chaos, and strengthen voters’ faith in the franchise,” she said.
BOE workers count ballots inside Queens Borough Hall last month. Eagle photo by David Brand
Disqualified ballot totals showed that Brooklyn residents were more likely to have their votes tossed over missing postmarks than voters in Queens and Manhattan — NY-12 covers parts of all three boroughs. But many Queens voters faced another obstacle, delivery delays.
Former Queensborough Community College Prof. Kathryn Stabile, 82, joined the lawsuit after noting on the ballot envelope that she did not receive her absentee ballot until June 23, the day of the election.
“She was never set up to get a timely postmark,” said Ali Najmi, a Queens election lawyer who represented the plaintiffs with co-counsel J. Remy Green. “That really hit me real hard.”
The discovery phase of the trial revealed that 34,359 blank absentee ballots were not delivered by the state BOE to the United States Postal Service until June 22 — the day before the primary election — all but assuring that thousands of voters would not be able to receive, complete and submit their ballots in time for their vote to count.
Two Queens district leader candidates, Maria Kaufer and Ethan Felder, also joined the lawsuit. Both ran in Assembly District 28.
“The decision informs the powers that be in New York that the constitution still means something,” Najmi said. “One of our most sacred rights, the right to vote, won the day.”
Update: Aug. 4, 5:05 p.m. The BOE provided the following statements, indicating that they will appeal the decision.
“Given the totality of the circumstances here, we understand the desire to protect the rights of voters,” said BOE Commissioner and Co-Chair, Douglas 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.”
