The June 23 Democratic Primary in NY-12 Highlights Serious Issues With Vote by Mail that Must be Fixed Before Nov. 3

"...because of what amounts to an administrative snafu and lack of forethought, Defendants (collectively, for convenience, the “Board”) have clarified they intend to simply toss out massive numbers of absentee ballots. The problem is simple:

1. The United States Postal Service (“USPS”) only postmarks envelopes that have postage on them (in part to prevent postage from being re-used). USPS does not traditionally postmark prepaid envelopes.2

2. Under N.Y. Exec. Order No. 202.26, New York shifted from a voter-paid absentee voting system (voters applied their own stamps to the envelopes, which would then be postmarked by USPS) to a pre-paid absentee voting system (voters do not apply stamps to envelopes, and the USPS would therefore not postmark the envelopes).

3. NY Elec. L. §8-412 requires3 absentee ballots to “show[] a cancellation mark of the United States postal service or a foreign country’s postal service, or showing a dated endorsement of receipt by another agency of the United States government, with a date which is ascertained to be not later than the day of the election.” And the Board has made clear there will be no accommodation – instead casting blame on the USPS for not implementing a massive change in the way they process mail (on a national scale) in just weeks..."

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Friends of Suraj Patel
August 3, 2020

Statement from Suraj Patel Regarding Preliminary Injunction Granted in NY-12 Democratic Primary Election

“The Constitution is not so toothless”

We have an obligation to shine a light where there is darkness and get to the truth no matter how uncomfortable that truth might be - that is why I haven’t conceded in my Primary, because the issues uncovered in our NY-12 election are now bigger than any one candidate or campaign. We’ve said it from the beginning: our election had issues, but they were not ones of voter fraud, as Donald Trump baselessly claimed from the White House podium today. Our election was strife with systemic voter disenfranchisement. And tonight, a federal judge agreed with us. 

As Americans, we fundamentally believe in the right to vote, and the right to have those votes counted. That’s why every one of us should be concerned about a process that invalidated over 1 in 5 mail-in ballots in New York’s 12th Congressional District. This is a jarring statistic for any developed Democracy and a rate 50-100x higher than that of Wisconsin, Georgia, Mississippi and dozens of other states. 

We should be concerned that the State of New York mailed upwards of 33,000 ballots in New York City alone on the night before the Election, knowing there was no chance of those votes ever being cast on time or ultimately, counted. 

We should be concerned that the State of New York spent taxpayer dollars in court arguing that counting votes validly cast but received without a postmark through no fault of the voter was “not in the public interest” and was not purposeful as to deserve a remedy. But a federal judge disagreed, writing in her opinion, “the Constitution is not so toothless.”

We stand on the side of the voters. This is not a Democratic versus Republican fight, and it is also not an establishment versus progressive fight. This is now a fight to protect the voting rights of millions of Americans in the midst of a global pandemic. We are obligated to not just celebrate our systems of democracy when they work, but to fight to improve and strengthen them when they do not. If we fail, we are bound to see the mistakes of our Democratic Primary repeated in November’s election, where Donald Trump, an existential threat to our democracy, has already signaled a desire to deny the outcome. Nothing less than the future of our country is at stake, and that’s why it’s all the more important that we won an unprecedented injunction tonight. 

I am grateful to our incredible, tenacious lawyers, Ali Najmi and Remy Green, and my co-plaintiff, and Greenpoint’s future Assemblywoman, Emily Gallagher. Thanks to these fearless fighters, change has already come to NY-12.

Vote by mail has worked masterfully in states like Oregon and Washington. In acknowledging that our system created de facto suppression of minority votes in true-blue New York City, we must look to their example as we fight to fix what failed in our election and restore faith in democracy in NY-12. 

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Related Press

• Why the Botched N.Y.C. Primary Has Become the November Nightmare (New York Times, August 3rd 2020 A1 Cover)
• Delayed election results raise concerns about mail-in voting (Today Show)
• New York district results delayed more than a month after mail-in voting (NBC News/MSNBC)
• A month later, this New York City primary is still a train wreck and a warning to us all (Washington Post)
• After a Chaotic Primary, New York Scrambles to Reset for the 2020 Election (TIME)
• Here's What Could Invalidate Your Absentee Ballot. And It's Beyond Your Control (Gothamist)  
• NEW YORK COULD THROW OUT 1 IN 5 MAIL-IN BALLOTS IN ONE DISTRICT, DISPROPORTIONATELY HITTING BROOKLYN (The Intercept)
• Cuomo, Board Of Elections Sued For Disenfranchising Thousands of Voters Over Postmark Problems On Absentee Ballots (Gothamist)
• New York’s Primary-Vote-Count Chaos Signals Trouble for November (The New Yorker) 
• Wall Street Journal Editorial Board: “New York’s Mail-Vote Disaster”
• NY Daily News Editorial Board: “Count every valid ballot: Make every effort to tally legitimately arriving votes, even those lacking postmarks”

Election Day Results Map 



Lawsuit Findings 

• See live tweets from WNYC reporter Brigid Bergin, who live-tweeted the case here.
• Today, we learned that 33,000 ballots were sent to the USPS by the BOE the day before Election Day or later, essentially ensuring 33,000 voters were unable to vote on time in compliance with state election law. Anecdotally, thousands more never received their ballots at all.
• 50% of these late ballots were mailed to Brooklyn.
• Under oath, the New York City BOE admitted that over 60% of those ballots were for Brooklyn and Queens, disproportionately impacted voters who overwhelmingly voted for change, where Suraj won by 20 and even 30% margins. 
• The USPS testified that the “service standard” is 1-2 days to receive a postmark. However, since 33,000 ballots were not mailed by the Board of Elections until the day before Election Day, that would make it impossible for these votes to receive valid postmarks. Ballot mailed to voter on June 22nd, received by June 23rd (if at all) → postmark of June 25th, if postmarked at all. Received by Board of Elections by June 25th → invalidated without an official postmark. 

Massive Invalidation Rates that Disproportionately Impact Pro-Suraj Areas: 

• Preliminary numbers obtained from the Board of Elections demonstrate astronomical mail-in ballot invalidation rates in New York’s 12th District, where Rep. Carolyn Maloney led challenger Suraj Patel by 1% after the in-person tally on Election Day. All validated absentee ballots have now been counted and the BOE is preparing to certify the election results on Tuesday, August 4. Those results will show that Maloney expanded her lead to about 3%, or roughly 3500 votes. What this picture excludes is the 12,500 voters who it’s clear were disenfranchised based on technicalities, in addition to the unknown number whose ballots were simply never sent. 
• Initial data from NY-12 specifically has been reported showing 19% invalidation rates in Manhattan and Queens, and 28% in Brooklyn. 
• The two most common reasons for invalidation were issues related to late or missing postmarks, and ballot envelopes lacking signatures. Under state election law, voters are required to sign their ballot envelopes in order to have their ballots validated; however, unlike most other states’, New York’s ballot envelope is designed to make that clear. 

USPS Failing to Postmark Ballots -- Conflict with State Election Law 

• Due to the coronavirus, Governor Cuomo asked Boards of Elections statewide to send voters a postage-paid absentee ballot envelope. However, postage-paid envelopes do not typically require postmarks by the USPS. This created confusion and great deal of variation across the different USPS branches. 
• Under state election law, in order for a ballot to be counted, it must be postmarked by June 23rd or before, and received by the Board of Elections by June 30th. 
• This year, the state relied on the Board of Elections to postmark postage-paid envelopes, which they do not typically do, and which staff would not be used to doing. It appears that this policy was not handled consistently throughout NYC and the 12th Congressional District. 
• The higher rate of invalidation in Brooklyn owes to the failure of the USPS there to postmark many ballots - under state election law, any ballot received after election day that lacks a postmark is preliminarily invalid. In Brooklyn, this issue comprised about half (roughly 1200) of the 28% of ballots that were invalidated. Of those 14%, about half were received by the BOE on June 24, meaning that the voters certainly sent the ballots on or before June 23. 

Federal Lawsuit 

• Suraj Patel joined another candidate and 12 voters in a federal lawsuit asking a judge to validate the ballots affected by the “postmark issue.” Notably, the highest volume of ballots without postmarks come from a historically diverse borough, Brooklyn. 
• “In the complaint, plaintiffs argue that this deluge of absentee ballots in the primary were handled inconsistently in part because of the State Board of Elections’ reliance on the United States Postal Service and that those ballots will be counted, or not counted with, ‘lightning-like randomness.’”
• “The plaintiffs argue that in Brooklyn alone, 4 percent of the absentee ballots returned there will be disqualified due to postmark issues, which means nearly 16,000 people will lose their vote. 
• They are asking the court to ensure every ballot that was mailed is counted as long as it was received by the June 30th cutoff date at the Board of Elections, regardless of whether or not the United States Postal Service postmarked it in a timely fashion.”
• Governor and AG’s statement on lawsuit
• Link to lawsuit

National Context 

• For context, a 20% mail-in ballot invalidation rate is astronomically high. Georgia’s is 0.74%, Missouri’s is 0.65%, Michigan’s is 0.53%, South Dakota’s is 0.53%, South Carolina’s is 0.39%, Nebraska’s is 0.23%, Wisconsin’s is 0.22%, Mississippi’s 0.16% (NPR: Signed, Sealed, Undelivered: Thousands Of Mail-In Ballots Rejected For Tardiness)

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Cassie Moreno

STATEMENT: Suraj Patel NY-12 Update on State of the Ballot Count and Voter Disenfranchisement

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Background: 

Election Day Results Map

Lawsuit Findings 

• See live tweets from WNYC reporter Brigid Bergin, who live-tweeted the case here.

• Today, we learned that 33,000 ballots were sent to the USPS by the BOE the day before Election Day or later, essentially ensuring 33,000 voters were unable to vote on time in compliance with state election law. Anecdotally, thousands more never received their ballots at all.

• 50% of these late ballots were mailed to Brooklyn.

• Under oath, the New York City BOE admitted that over 60% of those ballots were for Brooklyn and Queens, disproportionately impacted voters who overwhelmingly voted for change, where Suraj won by 20 and even 30% margins. 

• The USPS testified that the “service standard” is 1-2 days to receive a postmark. However, since 33,000 ballots were not mailed by the Board of Elections until the day before Election Day, that would make it impossible for these votes to receive valid postmarks. Ballot mailed to voter on June 22nd, received by June 23rd (if at all) → postmark of June 25th, if postmarked at all. Received by Board of Elections by June 25th → invalidated without an official postmark. 

Massive Invalidation Rates that Disproportionately Impact Pro-Suraj Areas: 

• Preliminary numbers obtained from the Board of Elections demonstrate astronomical mail-in ballot invalidation rates in New York’s 12th District, where Rep. Carolyn Maloney led challenger Suraj Patel by 1% after the in-person tally on Election Day. All validated absentee ballots have now been counted and the BOE is preparing to certify the election results on Tuesday, August 4. Those results will show that Maloney expanded her lead to about 3%, or roughly 3500 votes. What this picture excludes is the 12,500 voters who it’s clear were disenfranchised based on technicalities, in addition to the unknown number whose ballots were simply never sent. 

• Initial data from NY-12 specifically has been reported showing 19% invalidation rates in Manhattan and Queens, and 28% in Brooklyn. 

• The two most common reasons for invalidation were issues related to late or missing postmarks, and ballot envelopes lacking signatures. Under state election law, voters are required to sign their ballot envelopes in order to have their ballots validated; however, unlike most other states’, New York’s ballot envelope is designed to make that clear. 

USPS Failing to Postmark Ballots -- Conflict with State Election Law 

• Due to the coronavirus, Governor Cuomo asked Boards of Elections statewide to send voters a postage-paid absentee ballot envelope. However, postage-paid envelopes do not typically require postmarks by the USPS. This created confusion and great deal of variation across the different USPS branches. 

• Under state election law, in order for a ballot to be counted, it must be postmarked by June 23rd or before, and received by the Board of Elections by June 30th. 

• This year, the state relied on the Board of Elections to postmark postage-paid envelopes, which they do not typically do, and which staff would not be used to doing. It appears that this policy was not handled consistently throughout NYC and the 12th Congressional District. 

• The higher rate of invalidation in Brooklyn owes to the failure of the USPS there to postmark many ballots - under state election law, any ballot received after election day that lacks a postmark is preliminarily invalid. In Brooklyn, this issue comprised about half (roughly 1200) of the 28% of ballots that were invalidated. Of those 14%, about half were received by the BOE on June 24, meaning that the voters certainly sent the ballots on or before June 23. 

Federal Lawsuit 

• Suraj Patel joined another candidate and 12 voters in a federal lawsuit asking a judge to validate the ballots affected by the “postmark issue.” Notably, the highest volume of ballots without postmarks come from a historically diverse borough, Brooklyn. 

• “In the complaint, plaintiffs argue that this deluge of absentee ballots in the primary were handled inconsistently in part because of the State Board of Elections’ reliance on the United States Postal Service and that those ballots will be counted, or not counted with, ‘lightning-like randomness.’”

• “The plaintiffs argue that in Brooklyn alone, 4 percent of the absentee ballots returned there will be disqualified due to postmark issues, which means nearly 16,000 people will lose their vote. 

• They are asking the court to ensure every ballot that was mailed is counted as long as it was received by the June 30th cutoff date at the Board of Elections, regardless of whether or not the United States Postal Service postmarked it in a timely fashion.”

• Governor and AG’s statement on lawsuit

• Link to lawsuit

National Context 

• For context, a 20% mail-in ballot invalidation rate is astronomically high. Georgia’s is 0.74%, Missouri’s is 0.65%, Michigan’s is 0.53%, South Dakota’s is 0.53%, South Carolina’s is 0.39%, Nebraska’s is 0.23%, Wisconsin’s is 0.22%, Mississippi’s 0.16% (NPR: Signed, Sealed, Undelivered: Thousands Of Mail-In Ballots Rejected For Tardiness)

Related Press

• Here's What Could Invalidate Your Absentee Ballot. And It's Beyond Your Control (Gothamist)  

• NEW YORK COULD THROW OUT 1 IN 5 MAIL-IN BALLOTS IN ONE DISTRICT, DISPROPORTIONATELY HITTING BROOKLYN (The Intercept)

• Cuomo, Board Of Elections Sued For Disenfranchising Thousands of Voters Over Postmark Problems On Absentee Ballots (Gothamist)

• New York’s Primary-Vote-Count Chaos Signals Trouble for November (The New Yorker) 

• Wall Street Journal Editorial Board: “New York’s Mail-Vote Disaster”

• NY Daily News Editorial Board: “Count every valid ballot: Make every effort to tally legitimately arriving votes, even those lacking postmarks”

Lawsuit Alleges Gov. Cuomo, Board of Elections Created “election snafu” During the Pandemic that Stands to Disenfranchise Thousands in NYC.