As the counting winds down for New York State’s June primary election, a federal judge is set to decide whether thousands of absentee ballots were invalidated because of problems with postmarks and the U.S. Postal Service. Gothamist/WNYC first reported on the issue in early July after voters and election officials raised concerns about the reliability of the post office.
The issue took on national significance after President Trump criticized the state’s election on Twitter.
The issue sits at the nexus of Covid-19’s effect on in-person voting and chronic underfunding of the postal service. Add to the mix Trump’s efforts to sow doubts about voting security and a flurry of executive orders issued by Governor Andrew Cuomo that spurred a huge increase in New Yorkers voting by mail, and it’s no surprise a federal judge was left to decipher what constitutes a valid absentee ballot in the state.
In New York City alone, the local Board of Elections mailed out more than 778,000 ballots, and recorded 408,000 of them returned. Nearly 50 percent of the total vote of this primary was through absentee ballots, compared to previous elections when the rate hovered closer to single-digit percentages of the total.
Listen to Brigid Bergin's report on WNYC:
Ten days after the New York City Board Elections began counting those absentee ballots in Brooklyn, the Bronx, Manhattan, and Queens, two candidates and 13 voters sued the State Board of Elections and Governor Cuomo in federal court.
Attorneys for the plaintiffs argued that an “election snafu” triggered by problems stemming from Cuomo’s executive orders and unreliable policies at the Boards of Elections and the U.S. Postal Service stood to disenfranchise thousands of voters.
State and city attorneys dismissed those claims arguing that state election law applied equally and fairly to all voters—and that those same agencies performed admirably given the public health crisis. Defense lawyers also said the relief plaintiffs were seeking—to count ballots invalidated for missing or late postmarks—would cause a tremendous administrative burden on the state and could hinder preparation for November.
In her second high-profile election case in recent months, Judge Analisa Torres presided over a two-day evidentiary hearing Wednesday and Thursday on the matter. The parties were ordered to provide witnesses that could explain how absentee ballots were counted and what role the postal service played in the election process.
That testimony provided a behind-the-scenes glimpse of how officials struggled to run a chaotic primary in the midst of a pandemic, while candidates and voters sought to participate despite the public health crisis. It also highlighted the tension between state and city elections officials and inconsistencies with USPS policies.
“The City Board did not meet its timely requirement,” State Board of Elections Democratic Co-chair Douglas Kellner testified in reference to the New York City Board of Elections mailing absentee ballots.
“I understand the city thinks it did the best it could,” Kellner continued, “but I think they failed to scale up.”
He also testified about his deep distrust of the postal service, fomented by decades of experience as a commissioner for the New York City and State Board of Elections, where the post office failed to deliver mail to entire neighborhoods.
“For someone like me who is very concerned about election integrity issues, we go to great lengths to make sure every vote is counted and then we ignore this huge gap,” said Kellner, referring to mistakes by the postal service.
Absentee NYC Board of Elections ballots, June 22, 2020
Those remarks drew a sharp rebuke from Stephen Kitzinger, senior counsel with the City Law Department, who was representing the New York City Board of Elections. He reminded Kellner that dozens of New York City Board of Elections workers were stricken with Covid-19 and several died.
Kellner acknowledged those facts but added, “My view is they threw up their hands.”
Despite his criticism, Kellner also testified strongly against the relief sought by the plaintiffs. “You will create havoc if you order it for this election,” Kellner told Judge Torres.
The hearing also offered some explanation for why so many voters in the days before and after the primary complained that their absentee ballot arrived late or not at all.
Witnesses from the U.S. Postal Service testified that there was one office in Manhattan, the Morgan Processing and Distribution Center Station, that was supposed to process all the absentee ballots mailed to voters, and that voters mailed back to the New York City Board of Elections.
Under examination from Ali Najmi, one of the plaintiffs’ attorneys, witness Allen Tanko, Marketing Manager for the New York District with 36 years of experience at the federal agency, said that more than 32,000 ballots arrived at the Morgan Station to be mailed to voters on Monday June 22nd, one day before the election. While he said they expedited the handling of this mail, the “service commitment” for first class mail is that it will arrive in approximately 2 business days.
Another USPS witness, Michael Calabrese, an operations manager at the Morgan facility, said that 60 percent of those ballots were bound for voters in Brooklyn or Queens.
Those two witnesses also gave conflicting testimony as to whether a postmark is always applied the same day mail is picked up by the post office, especially when it is in a postage paid envelope.
“Prepaid mail is technically supposed to bypass the cancellation system,” Calabrese said. “If it followed the post office flow, it would not have received the postmark.”
At the same time, Calabrese said the post office’s long-standing policy was to ensure that election mail did receive a postmark. That’s why he said special measures were taken at the Morgan Station on June 23rd, the last day a valid postmark could be applied. He and his team were double-checking rejection bins and hand canceling certain ballots missed by their automated system. But he said those same extra steps were not in place for ballots that went through the station on earlier days.
Following witness testimony, the attorneys offered their closing arguments.
State attorney Owen Conroy argued that there was no election snafu since the postal service policy was to apply the postmarks to all ballots. His argument was echoed by the City Law Department’s Stephen Kitzinger.
“There have to be rules and finality,” Kitzinger said. He argued that the New York City Board of Elections and the postal service performed admirably given the demand and staff constraints because of the pandemic. He also argued that voters should have known that there was a cut-off for when postmarks were needed,“and their ignorance of the law is no excuse.”
Offering rebuttal remarks, plaintiff’s attorney J. Remy Green said it was clear that the pandemic caused strain on the Boards of Elections and the U.S. Postal Service. Still, they noted, “The only person not getting that kind of consideration is the voter.”
Judge Torres is expected to issue her decision in the coming days.
