#Judge orders New York State to count previously invalidated mail-in ballots

A federal judge ordered election officials to count thousands of mail-in ballots throughout New York State that were declared invalid for not having a post-mark or arriving at offices shortly after the June 23 primary.

In granting the preliminary injunction Monday, Manhattan Judge Analisa Torres said the plaintiffs who brought the suit — including congressional candidate Suraj Patel and Brooklyn Assembly candidate Emily Gallagher — had proved that voters were disenfranchised and denied their constitutional rights after being encouraged to vote by absentee ballot during the coronavirus pandemic.

Torres said these arbitrarily disenfranchised voters were denied free speech, equal protection and due process due under the law.

A major problem: Thousands of ballots that had stamps pre-paid by New York State were not post-marked by the Postal Service, particularly those coming from Brooklyn voters. But most other ballots were post-marked.

If such a post-marked ballot was not received by election officials by June 23, it was not counted.

Many ballots arrived at the elections board a day or two after the primary election because voters did not receive them in the mail from the Postal Service until Election Day.

“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 said in her 48-page ruling.

“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 order requires the New York City Board of Elections and all other local election agencies count “all otherwise valid” absentee ballots cast in the June 23 Primary which were received by June 24, 2020 — without regard to whether such ballots were postmarked by June 23 — or received by June 25, so long as such ballots are not postmarked later than June 23.

The judge said evidence provided by plaintiffs — based on an analysis on the city BOE’s own records — revealed that “thousands of absentee ballots cast in the June 23 Primary were invalidated” because they arrived after the close of polls on June 23 and lacked a postmark, or reflected a postmark with a date later than June 23.

Torres added, “the evidence shows that many more ballots were invalidated in Brooklyn than in other boroughs.”

The judge referred to testimony from Dawn Sandow, the city BOE’s deputy executive director, who estimated there were “possibly” 2,000 ballots invalidated in Brooklyn alone for lacking post-marks — far higher than other parts of the city.

Torres pointed to unequal treatment of voters based on where they lived — pointing to invalidated mail-in ballots from the 12th congressional district that includes the East Side of Manhattan, Greenpoint in Brooklyn and Long Island City/Astoria in Queens. While ballots were invalidated in all three boroughs, the percentage was 50 percent higher in Brooklyn, she noted.

“This is strong evidence that USPS locations in Brooklyn handled absentee ballots differently from the postal service locations in the other boroughs. 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,” the judge said.

“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 example, 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 won her race, toppling long-term incumbent Joe Lentol in the 50th Assembly District that takes in Greenpoint and Williamsburg.

The city BOE intended Tuesday to declare Rep. Carolyn Maloney the winner in a nail-biting rematch against Patel before the judge’s ruling. She was ahead by 3,700 votes but even President Trump weighed in, saying New York officials botched the handling of ballots and suggesting a redo of the election.

Still, sources said Maloney will likely prevail in any recanvassing of absentee ballots because of the size of her lead and the fact that most of the absentee ballots were mailed from her power base on Manhattan’s East Side, not the Brooklyn or Queens portions of the district.