MANHATTAN (CN) — Thousands of invalidated mail-in ballots from New York’s Democratic primary election in June must be counted, a federal judge ruled late Monday night in a statewide order.
“The Constitution is not so toothless,” U.S. District Judge Analisa Torres wrote in a 48-page opinion that says the New York State Board of Elections must direct local boards to count thousands of mail-in ballots for the primary election that had a late postmark or were lacking a postmark.
“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,” the Obama-appointed judge wrote.
Nearly six weeks after the rescheduled primary election on June 23, Torres’ order requires local elections administrators across the state to count all otherwise valid absentee ballots that were received by June 24 without regard to whether such ballots are postmarked by June 23. Ballots that were received by June 25 but postmarked no later than June 23 also must be counted.
It is uncertain whether counting these ballots will alter the outcome of any races.
Congresswoman Carolyn B. Maloney is leading her Democratic challenger for the New York’s 12th Congressional District, Suraj Patel, by some 3,700 votes, and the judge’s decision will only force the counting of around 800 disputed absentee ballots in that contest.
Patel, a co-plaintiff in the suit, has still refused to concede his primary race to longtime incumbent Maloney until the remaining votes are counted.
“We have no reason to concede yet because we have thousands of ballots left to count,” Patel said at a videoconference Tuesday morning.
“We cannot just call out voter suppression and disenfranchisement when it is red, it is equally important to call it out when it’s also a Democratic state, because this is a problem, the constitution does not know parties and as Judge Torres said, ‘the constitution is not toothless,’” he said.
Meanwhile, Emily Gallagher, a 36-year-old insurgent Greenpoint Assembly candidate and co-plaintiff, officially defeated Joe Lentol, the 77-year-old, 23-term incumbent who conceded two weeks ago. With no opponent in the general election, Gallagher stands as the assemblywoman-elect for New York State Assembly District 50.
“It’s a shame that it took two new candidates without the backing of elected officials or major power players to force thousands of duly cast votes to be counted, but I’m proud that I did it,” Gallagher said at a press conference Tuesday morning. “I think last night that democracy won, and I think it’s going to make people feel a lot more comfortable to continue to vote, which is desperately needed in this terrible time.”
Queens-based attorney J. Remy Green, who represented the candidates and a dozen voters in their class action suit, said Tuesday that it remains unknown how many invalidated votes there are in the state that will be counted.
Judge Torres’ ruling comes a week after two days of evidentiary hearings via videoconference where New York State Board of Elections commissioner Douglas Kellner conceded that absentee ballots placed in a U.S. mailboxes on Election Day after the last pick-up time would not be postmarked.
Officials from the Postal Service testified that the state’s postage-paid, mail-in ballots are technically business-reply mail, which do not normally get postmarked, but that it is longstanding Postal Service practice to ensure the election ballots are postmarked.
Business-reply mail is typically delivered in one to three days, Postal Service officials testified.
“The evidence shows that many more ballots were invalidated in Brooklyn than in other boroughs,” Judge Torres wrote in her opinion.
Dawn Sandow, deputy executive director of the New York City Board of Elections, testified that although most absentee ballots returned by voters were postmarked, there were substantially more Brooklyn ballots without postmarks, possibly 2,000 ballots invalidated in Brooklyn, whereas there were between 20 to 60 absentee ballots that lacked postmarks in the other boroughs.
On Monday afternoon, before Judge Torres made her opinion public, President Trump suggested at press briefing there should be a revote in New York’s Democratic congressional primary.
“I think you probably have to take the Carolyn Maloney race and run it over again,” Trump told reporters. “They are six weeks into it now and they have no clue what’s going on, and I think I can say right here and now, you have to rerun that race because it’s a mess.”
Last week, Trump tweeted that New York’s “mail-in voting is in a disastrous state of condition.”
“Votes from many weeks ago are missing — a total mess,” he wrote, casting doubt on mail-in voting. “They have no idea what is going on. Rigged Election. I told you so. Same thing would happen, but on massive scale, with USA.”
Patel said Tuesday that it was “cynical” and “absurd on its face” to conflate his efforts to challenge voter disenfranchisement and reluctance to concede with Trump’s unsubstantiated claims of widespread mail-in voter fraud.
“Donald Trump famously takes things and confuses and conflates them on purpose to obfuscate and create questions in electorate,” he said.
“Anyone who is letting Donald Trump conflate the issue of New York’s 12th election into a cause for voter suppression and calling it voter fraud, which we have no basis of, is complicit in his conflation,” Patel, taking a swipe at his opponent, who said he had mouthpiece for Trump’s disparagement of mail-in voting.
“We don’t need his help in this race, we have the constitution, we have lawyers, we have voters,” Patel remarked Tuesday morning.