New York Democrats Ask for Rejected Absentee Ballots to Be Counted

An exhibit photo shows one of the absentee ballots.

MANHATTAN (CN) — Casting doubt on the reliability of the U.S. Postal Service to adequately administer the historic surge of mail-in electoral ballots during the Covid-19 pandemic, New York’s state election commissioner urged a federal judge not to force a recount of absentee ballots in the state’s June primary election and instead unburden election officials to focus on getting ready for the fall presidential election. 

“I wouldn’t use those words ‘generically untrustworthy’ — but I would say that in terms of the competence and care with which they exercise this very serious responsibility entrusted to them, I have concerns,” New York State Board of Elections commissioner Douglas Kellner said of the U.S. Postal Service during a video conference Wednesday. 

Two weeks ago, two Democratic candidates in New York’s primary election — Suraj Patel and Emily Gallagher — along more than a dozen voters filed a federal class action in Manhattan accusing New York Governor Andrew Cuomo and the state’s Board of Elections of allowing an “election snafu” during the state’s June primary election that could potentially disenfranchise thousands of voters. 

During the time that New York was the country’s epicenter for the Covid-19 global pandemic, Cuomo issued an executive order in April ensuring that every New York voter would automatically receive a postage-paid application for an absentee ballot. In the weeks following the June 23 Democratic primary election, however, thousands of New Yorkers’ mail-in ballots ended up disqualified due to lack of postmarks on the return envelopes. 

Represented by Queens-based attorney J. Remy Green, the class asks for emergency relief seeking to review and recount those mail-in ballots from the state’s June 23 primary election that were invalidated.

“The relief itself is straightforward: count every ballot received before the already existing cut-off (e.g., June 30 for the June 23 election), regardless of whether the USPS happens to have disregarded its long-standing practice in order to specially stamp the ballot,” their complaint states. 

The results of the June 23 primary are expected to be certified on or around August 3. 

Since the lawsuit was filed, Gallagher, a 36-year-old insurgent Greenpoint Assembly candidate officially defeated Joe Lentol, the 77-year-old, 23-term incumbent who conceded last week.

With no opponent in the general election, Gallagher stands as the assemblywoman-elect for New York State Assembly District 50. 

Despite her victory, Gallagher said Wednesday she believes it is to her benefit for all of her “constituents to feel their voices are heard.”

Meanwhile, Patel’s opponent, veteran Congresswoman Carolyn Maloney, has secured a 4% lead in the Democratic primary count for New York’s 12th Congressional District. Patel has thus far refused to concede, however, until a federal judge rules on a recount of the thousands of disqualified mail-in votes. 

New York’s 12th Congressional District encompasses Manhattan’s East Side, Long Island City, parts of Astoria and Woodside in western Queens, and the Greenpoint section of northern Brooklyn. 

“Courts have held that you are not entitled to a perfect election, but you are entitled to a free and fair one,” Patel said in a statement Wednesday. “Unfortunately, in ours, thousands of voters never received their ballots, and for those who returned their ballots by mail, nearly 25% were rejected. 

“This is not just slightly above the norm compared with other states,” Patel added. “It’s 100 times the rejection rate of Wisconsin. It shatters any semblance of normalcy — states like Georgia, Missouri, Michigan, South Carolina and Mississippi all have invalidation rates under 1%.” 

At an evidentiary hearing Wednesday, Kellner urged U.S. District Judge Analisa Torres not to task state election officials with “reopening the canvas” to recount the mail-in ballots from the primary election, especially if there are not any particularly close races where the outcome could change. 

“It would create a very burdensome and substantial amount of work to require county election officials to go back and re-canvas absentee ballots to determine whether there were unpostmarked ballots and then to open them up and add them,” Kellner said. 

“Literally we’re talking about tens of thousands of person-hours of work to do that,” the state election commissioner said. “And that’s at a time the boards of elections are extraordinarily overburdened in preparing for the November election and all of the problems that we’ll have going forward … that I think are inevitable for the November election.” 

Kellner added: “It’s a very bad principle of election administration to change the rules after the fact.” 

“I have supported, and the Legislature actually passed last week … a bill to allow ballots to be counted that received without postmarks the day after election, basically following that same Wisconsin model, and I supported that,” he continued. “But that’s effective in November, and I think it’s a very bad idea to change it now to make it retroactive for the June primary.” 

Kellner also said that the City Board of Elections did not meet its own requirements for getting out absentee ballots to voters; the city board set a deadline for applying that was unrealistically close to the day of the election, he said. 

Kellner said he urged staff at the city board to take more urgent steps to process a backlog of absentee-ballot applications in the weeks before the June primary and encountered a sense of “resignation” from the city’s employees. 

An attorney representing the city board, Stephen Kitzinger, noted in response that several staffers for the city’s board of election had died from Covid-19 and dozens were sick at the time. 

The evidentiary hearing will continue Thursday morning with direct questioning of a representative from the United States Postal Service. 

Earlier this year, Judge Torres previously ordered an injunction forcing New York to reverse course and hold the state’s Democratic  presidential primaries on June 23 after they had already been canceled due to the Covid-19 pandemic.  

President Donald Trump tweeted on Wednesday evening that New York’s “mail-In voting is in a disastrous state of condition.” 

“Votes from many weeks ago are missing — a total mess,” Trump wrote. “They have no idea what is going on. Rigged Election. I told you so. Same thing would happen, but on massive scale, with USA.”

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