New York Must Count Previously Invalidated Mail-In Ballots: Judge

August 4, 2020 Updated: August 5, 2020

New York election officials must count thousands of mail-in ballots that were previously deemed invalid, a federal judge ruled late Monday.

U.S. District Judge Analisa Nadine Torres, an Obama-nominee, granted the motion by plaintiffs for a preliminary injunction.

Torres ordered the commissioners of the New York State Board of Elections “to direct all local boards of elections to count all otherwise valid absentee ballots cast in the June 23 Primary.”

The two stipulations are: the mail-in ballots must have been received by June 24, with no regard to the postmark, or received by June 25, as long as the ballots are not postmarked later than June 23.

“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,” Torres wrote in her ruling.

For voters who voted by absentee ballot, “accepting the state’s offer to vote by absentee ballot and following the state’s instructions to vote timely, nonetheless resulted in their ballots not being postmarked, and, consequently, invalidated,” she added.

“Under these circumstances, the policy embodied by the postmark rule, deliberately adopted and intentionally applied to those ballots, is sufficient to establish a violation of the Due Process Clause and the First Amendment.”

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A voter stands on a Vote NYC sticker to encourage social distancing during the New York Democratic presidential primary elections in New York City on June 23, 2020. (Angela Weiss/AFP via Getty Images)

Absentee ballots are traditionally only available to voters who expect to be unable to vote in person because of a narrow set of criteria. New York Gov. Andrew Cuomo, a Democrat, on April 9 said any voter who is concerned about contracting COVID-19 could vote by mail. Later that month, he ordered the sending of absentee ballot applications to all eligible voters. New York state lawmakers also amended election law, allowing voters to request absentee ballots over the Internet.

Despite occurring on June 23, final results for the primary have yet to be broadcast, a failure pinned on the major increase in mail-in ballots election officials and the U.S. Postal Service saw.

On the day before the election, for example, the service received over 30,000 absentee ballots, Allen Tanko, USPS Marketing Manager for the New York District, told the court last month. Ultimately, some 1.2 million New York voters used absentee ballots in the primary—more than 10 times the number of such ballots cast in 2016.

Postal service employees are responsible for postmarking, or stamping, ballots. Despite the service’s efforts, thousands of mail-in ballots were not postmarked.

“This could be due to a number of human or mechanical errors,” Torres wrote.

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A New York absentee ballot application in a file photograph. (Chris Hondros/Getty Images)

Confusion stemmed in part from conflicting messages the New York City Board of Elections gave. The board told voters that ballots could be postmarked by June 23 to be valid but told the court that absentee ballots placed in a mailbox on Election Day after the last pick-up time would not be postmarked.

The bungled process has attracted harsh criticism. Republican President Donald Trump called it “a total disaster.”

“They’re six weeks into it now. They have no clue what’s going on. And I mean, I think I can say right here and now, I think you have to rerun that race. Because it’s a mess. Nobody knows what’s happening with the ballots and the lost ballots and the fraudulent ballots,” he told reporters at the White House on Monday.

Experts have told The Epoch Times that voting-by-mail is fraught with problems.

During hearings last month, plaintiffs provided evidence that many more ballots were invalidated in the Brooklyn borough of New York City than in other boroughs, Torres said.

Dawn Sandow, the city Board of Elections’ deputy executive director, told the court during a virtual hearing last month that “possibly” 2,000 ballots were invalidated in Brooklyn, compared to between 20 and 60 absentee ballots invalidated in the other boroughs.

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Rep. Carolyn Maloney (D-N.Y.) speaks to reporters in Washington on June 25, 2020. (Alex Wong/Getty Images)

The lawsuit was filed on behalf of Emily Gallagher, a candidate for state Assembly, Suraj Patel, who is challenging Rep. Carolyn Maloney (D-N.Y.) for the congressional seat representing New York’s 12th District, and voters who felt disenfranchised.

In a statement, Patel said “every one of us should be concerned about a process that invalidated over 1 in 5 mail-in ballots” in the 12th District.

“This is a jarring statistic for any developed Democracy and a rate 50-100x higher than that of Wisconsin, Georgia, Mississippi, and dozens of other states,” he said.

Voting by mail works, he argued, but the problems must be fixed.

Remy Green, one of the lawyers who filed the suit, said the ruling “confirms that amid a pandemic, the Boards of Elections failed spectacularly to meet their commitments.”

The city’s board didn’t respond to a request for comment.

The state Board of Elections decided to appeal the new decision, commissioner and co-chair Douglas Kellner said in an emailed statement.

“Given the totality of the circumstances here, we understand the desire to protect the rights of voters,” Kellner said. “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.”

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