What can lawmakers do about NY’s maddeningly slow vote count?

To say that New York has been slow to count absentee ballots this year is an understatement. By the time enough absentee ballots were counted to allow Democratic state Senate leaders to celebrate picking up two new seats to win a supermajority, the entire state of Georgia had already counted and certified its votes twice. Meanwhile in New York, some local boards of election missed the Nov. 28 legal deadline to submit final election results to the state. 

The counting of absentee ballots didn’t even begin in New York until at least a week after the election – some local boards of election waited even longer. And it wasn’t just November’s election results that were delayed. The winners of two congressional primary races this year weren’t declared until six weeks after the June election.

There are several reasons why New York takes so long to count absentee ballots, and a pandemic election year put them all on display. “It's always been that there have been huge problems, that New York has had a really high rejection rate for mail ballots where people are getting their ballots tossed for failing to sign them or something,” said Sean Morales-Doyle, deputy director of the Democracy Program at the Brennan Center for Justice at NYU Law. “But when it's a tiny fraction of voters that are casting mail ballots, that doesn’t bother people as much.”

This year, Gov. Andrew Cuomo and the state Legislature expanded access to mail-in voting to virtually every New York voter because of the coronavirus pandemic, and millions took advantage. In November’s general election, almost two million voters cast absentee ballots, representing over 20% of all votes cast. In past elections, absentee ballots have accounted for closer to 4% of all votes cast in New York.

By the time enough absentees were counted to allow Democratic state Senate leaders to celebrate winning a supermajority, the entire state of Georgia had already counted and certified its votes twice.

Although the unprecedented high number of mail-in ballots cast in both the primary and general elections this year can account for the especially long wait for results this time around, the process of counting absentee ballots in New York was a prolonged one even before the pandemic, for both statutory and administrative reasons. Now, some state lawmakers are looking to change the process they say would make New York a national laughing stock if it were a closely watched swing state. “We all know why the current system needs to change. We're sitting here three weeks after Election Day – more than three weeks now – and we still don't have resolution on a number of races,” state Senate Deputy Majority Leader Michael Gianaris told City & State. “We’re the slowest state in the country for counting votes, and it creates uncertainty and encourages frivolous litigation.”

In fairness to New York, some of its delays stem from laws that help ensure votes can be cast and counted. “The count is delayed somewhat by some voter-friendly policies that are on the books,” Morales-Doyle said. 

New York is one of just a few states that allow a person to submit an absentee ballot and then decide that they’d rather vote in person. Casting an in-person vote nullifies that voter’s mail-in ballot. But in order to ensure that no one’s vote is counted twice, all absentee ballots have to be cross-checked with in-person votes, which typically takes about three days, and absentee votes can’t be counted until that cross-check process is finished.

More crucially in this era of politically motivated mail delays, boards of election in New York count absentee ballots that arrive up to seven days after Election Day, as long as they are postmarked by Election Day. So while a state like Florida is sometimes lauded for its fast counting process, the Sunshine State doesn’t accept ballots that arrive after Election Day. 

Voting rights experts do not think New York should require absentee ballots to arrive sooner just to have faster results. “It’s actually good for voters to give them the most time possible to get their ballot in, make sure it's counted and not have to worry about the vagaries of how the postal system works potentially getting in the way of having your ballot counted,” Morales-Doyle said.

“We’re the slowest state in the country for counting votes, and it creates uncertainty and encourages frivolous litigation.” – state Senate Deputy Majority Leader Michael Gianaris

Allowing ballots to arrive up to seven days after the election doesn’t mean the local BOEs couldn’t count the ballots as they come in. “So many of them just decide, ‘Well, let's just wait until everything can be received and then we’ll start counting,’” said Gianaris. “That's just an administrative decision, because they're not anxious to start earlier. I think it's the wrong decision.”

But some say New York's canvassing process poses problems for earlier counting. Boards of election have to give candidates and qualified political parties the opportunity to watch ballot counting – and they have to give them five days' notice. With military ballots coming in up to 14 days after Election Day, scheduling is a challenge. "It kind of doesn't make sense, from the perspective of the board of elections, to have like 10 different days where the candidates are all going to come in,” explained Jennifer Wilson, deputy director for the League of Women Voters of New York State.

Another voter-friendly policy that might contribute to delays is the state’s new “notice and cure” law, which allows boards of election to contact voters who submitted absentee ballots to notify them of a potential defect – such as a missing signature on the ballot envelope – and give them a chance to fix, or “cure,” the deficiency, in order to have their vote counted. Boards of election are supposed to notify voters of these deficiencies as soon as possible – including prior to Election Day – but it’s possible that those notices don’t go out until later. This year, voters had five days to cure their ballots if they were informed of an issue on or after Election Day.

But Morales-Doyle said that New York can keep these policies on the books and still conduct a faster count than it does now. “Those things lead to some delay, because there are ballots still arriving after Election Day, there are ballots that might need to be cured before they can be counted after Election Day, but that’s not all of the ballots,” he said. “There are lots of states that have these voter-friendly policies and not a single one of them waits a week to start counting.”

“It's good to have a system in place that ensures that every vote is counted, and that might mean we have to wait longer. But it's just way past that in New York.” – Sean Morales-Doyle, deputy director of the Democracy Program at NYU Law’s Brennan Center for Justice

The protracted count of absentee ballots can also be attributed to a lack of adequate funding at boards of election. “New York state has not sufficiently invested in resourcing BOEs to deal with large numbers of incoming absentee ballots,” said Sochie Nnaemeka, the New York state director of the Working Families Party. Nnaemeka added that in anticipation of higher numbers of absentee ballots this year, New York should have moved to make changes to the process, including possibly starting the count earlier. 

Assembly Member Charles Lavine, who chairs the Assembly Committee on Election Law, said that he thought election employees have done “by and large, a remarkable job of adjusting to a new system,” under very challenging circumstances. But if New York wants a faster count in the future – assuming more people continue to vote absentee – additional resources will be required. “It’s an expensive proposition. It requires more elections employees to handle the paperwork – both in terms of mailing it to the voters and then collecting it and processing it.”

State lawmakers are already looking to permanently expand access to mail-in voting, considering again a state constitutional amendment that would get rid of any requirements for voters to qualify to vote absentee. Typically, only a small category of people are eligible to vote absentee, including those with a disability or who will be out of town during the election. This year, by executive order, fear of contracting COVID-19 was deemed a legitimate medical reason to vote absentee. 

Representatives for the state Board of Elections and the New York City Board of Elections did not respond to requests for comment on why absentee ballots aren’t counted until seven days after the election or whether more resources would be needed to complete a faster count.

If New York does move to no-excuse absentee voting, and if more voters continue to cast absentee ballots in future elections, some experts said a lot will need to change in order to avoid the weekslong waits for results that New York saw this year. Gianaris has already introduced a bill that aims to speed up the process. Under the proposal, voters would no longer be allowed to submit both an absentee ballot and vote in-person. The bill would also mandate that absentee ballots be processed by election boards as they are received – examining their validity by checking envelopes for missing signatures, for example – and begin counting absentee ballots three hours before polls close on Election Day. 

Under this proposal, the counting of absentee ballots might take days, instead of weeks. Starting the count hours before polls close, Gianaris told Gothamist, “would certainly get us on par with other states that are able to announce the results, either on Election Day or very close to it.” Mail-in ballots would still be arriving in the week – or two weeks, for military and overseas voters – after Election Day, and counting would continue on those days, but most races probably wouldn’t be close enough to hinge on late-arriving ballots. “It'll be a week, it wouldn't be three,” Morales-Doyle said of beginning to count votes sooner. 

After all ballots have been received and counted, the results would be certified by the state Board of Elections. This year, the deadline for counties to submit final results to the state was Nov. 28.

Lavine noted that some may resist getting rid of the system that allows a voter to cast a ballot in person after voting absentee. “I'm not so sure that that is a system that New York state is going to be prepared to abandon, because it's been part of our cultural and political history for quite a while,” Lavine said. “But Gianaris’ bill certainly has merit, and it’s going to get full consideration.”

This year, some absentee voters across the country were concerned that their ballots wouldn’t arrive on time to be counted because of Postal Service delays. New York’s system of allowing people to vote in person even after submitting an absentee ballot may comfort those who worried about their absentee ballots arriving on time. But Gianaris said even if the state gets rid of that policy, voters can cast an affidavit ballot in-person if they have any doubts that their absentee ballot has been received. If the board had already received an absentee ballot from that voter, the affidavit ballot would then be cast aside and not counted. The basic principle of the bill is to count the first ballot that the board receives.

Nnaemeka said that New York can’t address the problems with absentee voting – including the delay in getting results – with a single proposal. “We have to look at the system holistically. We can't actually do disconnected tweaks,” she said, mentioning the need for additional steps including permanently instituting no-excuse absentee voting, putting up ballot drop-off boxes in accessible locations across the state, and investing in sufficient resourcing to allow boards of election to process more absentee ballots and count them on time.

While it makes political junkies crazy, voting rights advocates don’t necessarily mind New York’s slowness. “It's not the end of the world that we wait a little bit,” Wilson said. “We'd much rather have a really complete count where every ballot that's eligible to be counted is going to be counted and counted accurately, than rush through the count and miss votes or disqualify votes that shouldn't have been disqualified and not allow those votes to be counted.”

Morales-Doyle agreed that waiting for an accurate count is part of the democratic process, but said that counting could start sooner without disenfranchisement. “It's good to have a system in place that ensures that every vote is counted, and that everyone accepts the fact that when there's a lot of mail voting, that might mean we have to wait longer,” he said. “But it's just way past that in New York. It’s not waiting a few days, it's not waiting a week, it's ‘we're not even going to start counting until a week after Election Day,’ which doesn't really make a whole lot of sense.”