By: Blake Vaisey

New York is once again facing issues with its mail-in ballot system. A lawsuit filed on September 11 by, among others, Emily Gallagher, a candidate running for the New York State Assembly’s 50th District, claims that potentially thousands of ballots are going to be thrown out in future elections do to New York State’s postmark requirements, a problem that is compounded by the slowdown that the United States Postal Service has been facing in recent months. 

The lawsuit is related to NY Elec. L. §8-412, which requires absentee ballots to have a postmark from the postal service showing the date on which the ballot was sent, and rejects ballots postmarked any time after the day of the election. 

This is Gallagher’s second lawsuit in recent months relating to postmarks and how they effect New York State’s elections. The first came in July in response to the June primaries, in which she and her fellow plaintiffs claimed that hundreds of mail-in ballots were being unconstitutionally discarded because of the postmark requirement. This was largely because of the way New York State election policy interacted with United States Postal Service (USPS) policy. In NYS Governor Andrew Cuomo’s Executive Order No. 202.26, the Governor ordered that all absentee ballots be provided with a postage-paid return envelope. This was an issue because USPS standard policy is to apply postmarks to mail that has a stamp on it, which ballot envelopes no longer did. 

That case ended in a win for Gallagher, when District Judge Analisa Torres, of the Southern District of New York (SDNY), ordered an injunction requiring all New York State Boards of Elections to count any ballots that were received by the day after the election due to the virtual impossibility that ballots received by the Board of Elections on the day after the election were cast after election day. The state followed up in August by amending the election law to match Judge Torres’s order, an amendment that is effective until December 31 of this year.  

The new complaint, also filed in SDNY, is once more going after the postmark requirement, this time looking for a more general declaration of the postmark requirement being unconstitutional. The complaint includes worries that the postal service slowdowns will make the postmark issues even worse, as major delays in postal service may cause ballots to be postmarked much later than they were actually received. This issue, as well as the issue of the slowdown causing ballots to be delayed in reaching Boards of Elections in a timely manner, will result in citizens being disenfranchised despite doing everything right, according to the lawsuit. 

The lawsuit goes a step further to suggest several alternatives that the NYS Board of Elections could employ instead of discarding ballots lacking a timely postmark including: a sworn statement on the ballots indicating the day they are turning in the ballot, swapping the standard to require evidence that a presumptive ballot was not mailed in time, or using “intelligent mail barcodes”, which would allow the Board of Elections to track the ballot through the USPS system, including the day on which it was received. 

It is not yet clear whether the lawsuit will be successful in allowing late ballots to be counted in New York State, but the fact that it has been filed makes it clear that New York may be facing major issues come November. With the general election already setting records for the number of absentee ballots being requested, it’s unclear how confident New York voters should be in any ballots being mailed at the last minute actually being counted.

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