Federal Judge Orders New York to Count Thousands of Invalidated Mail-in Ballots
Manhattan Judge Analisa Torres granted the preliminary injunction
Thousands of invalidated mail-in ballots throughout New York State have been ordered to be counted by a federal judge, despite not having a post-mark or arriving after June 23 primary.
Manhattan Judge Analisa Torres granted the preliminary injunction saying the plaintiffs who brought the suit proved voters were denied their constitutional rights after being encouraged to vote by absentee ballot throughout the coronavirus pandemic.
Torres said that voters were denied equal protection, due process, and free speech.
But thousands of ballots with stamps pre-paid by New York State were not post-marked by the Postal Service.
If election officials did not receive such a post-marked ballot by June 23, it wasn't counted.
But many ballots arrived after the primary election due to voters not receiving them in the mail until election day.
Torres said in her 48-page ruling:
“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 those who voted by absentee ballot in the Gallagher and Patel races—and in particular, for those voters living in Brooklyn … 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."
“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,” the judge ruled.
The judge's ordered the New York City Board of Elections and local election agencies to count “all otherwise valid” absentee ballots, which were received by June 24, 2020.
The order disregards whether such ballots were postmarked by June 23, or even received by June 25, as long as they are not postmarked after June 23.
The judge said evidence revealed “thousands of absentee ballots cast in the June 23 Primary were invalidated" because they arrived on June 23 - after the close of polls without a postmark.
“The evidence shows that many more ballots were invalidated in Brooklyn than in other boroughs.”
Torres referred to the testimony of city BOE’s deputy executive director, Dawn Sandow, who said were “possibly” 2,000 ballots invalidated in Brooklyn alone for not having postmarks.
Torres pointed to invalidated mail-in ballots from the 12th congressional district, including Long Island City/Astoria in Queens, Greenpoint in Brooklyn, and East Side of Manhattan.
“This is strong evidence that USPS locations in Brooklyn handled absentee ballots differently from the postal service locations in the other boroughs," the judge said.
"Whether they were not delivered to the Morgan Facility, or mishandled once they got there, a significant number of Brooklyn ballots that should have been postmarked were not."
“Whether an individual’s vote will be counted in this race, therefore, may depend in part on something completely arbitrary—their place of residence and by extension, the mailbox or post office where they dropped off their ballot."
"Not only is this `not a process with sufficient guarantees of equal treatment, it is also the type of differential treatment that the Supreme Court has found to violate the `one person, one vote’ principle,” ruled Torres.
For instance, the NYCBOE has not counted 628 absentee ballots that were cast in Gallagher’s race and 691 absentee ballots that were cast in Patel’s race that were received by the city BOE on June 24, the judge said.
Gallagher toppled long-term incumbent Joe Lentol in the 50th Assembly District after winning her race.
But the BOE provided the following statements, suggesting they will appeal against 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.”