NY’s unresolved election mess

The most controversial and highly anticipated presidential election in recent American history is less than three months away, and New York still has a lot of work to do in order to avoid the repeating mishaps of the primary election, in which an untold number of New Yorkers were disenfranchised by bureaucratic and political failures such as not receiving their absentee ballots on time. It took six weeks to certify the Democratic presidential primary results in the state, an untold number of people never received their absentee ballots and thousands of ballots were invalidated for minor technicalities or missing a postmark, the latter an error by the United States Postal Service and not the voter.

The state has begun to take some steps through legislation, though few new laws or provisions have actually been put in place since the primary. And new issues have arisen from federal attempts to cripple the USPS could create even more complications. 

Officials for the state Board of Elections testified to the state Legislature this month that they expect many of the same problems that plagued the June primary to occur in the November general, which will see significantly higher turnout. With an estimated 5 million absentee ballots expected, the state BOE also said they would need another $50 million to process them all, on top of the $25 million generally needed to conduct a presidential election. 

The state Board of Elections said it planned to put a large red X or arrow indicating where voters need to sign when filling out their absentee ballot to avoid invalidations for technicalities, but there’s little they can do without action from the state, or more funding from the federal government. And while there’s some movement in state government, it is apparent that congressional Republicans and President Donald Trump are determined to deliberately starve states and the US Postal Service of the resources needed to conduct a largely mail-in election to avoid risk of spreading the coronavirus. Unlike the Democrats in the House of Representatives, the Republican Senate has recessed until September and does not plan to return early. Trump has said he would deny funding to the USPS and for elections because he wants to disrupt mail-in voting.

The state Legislature returned for an unusual summer session in late July to pass, among many other things, rules that would hopefully help the general election run more smoothly than the primary. Chief among them was a bill to expand absentee voting to everyone in light of the pandemic, temporarily tweaking the definition of “temporary illness” – one of the few reasons someone can vote by absentee – to include fears of contracting or spreading COVID-19. An earlier executive order from Gov. Andrew Cuomo had made the same change for the primary, but he had not issued a new one to cover the general. That bill was sent to Cuomo on Aug. 10 and still awaits his signature. He has until Thursday to sign it before it automatically becomes law, although he said on Friday he intends to approve it.

The state Legislature also passed several other bills meant to alleviate some of the issues that arose in June. One bill will allow absentee ballots lacking postmarks to be counted if they are received a day after the election. Under current law, boards of elections may count ballots received on or before Election Day, as well as those with postmarks on or before Election Day received up to seven days after the election. The postmark indicates a voter cast the ballot in time. However, in June, thanks to mistakes on the part of the post office, some ballots did not have a postmark when received after the June 23 primary, particularly in Brooklyn, and thus were deemed invalid. (A judge later ruled that ballots received up to two days after June 23 but missing a postmark must be counted in the primary.) The new bill is meant to partially address this issue under the assumption that a ballot received the day after the election must have been cast in time, regardless of the postmark. It would not, however, do anything for people who send in their ballots on time but whose ballots – through no fault of their own – are received just a few days after the election without a postmark.

Another bill that passed the state Legislature would allow the boards of elections to begin processing absentee ballot applications immediately. Under current law, boards are not allowed to begin processing applications until 30 days before the election. With the sudden influx of applications, voters across the state – particularly downstate – said they didn’t receive their ballot in time for the election, despite applying on time. Part of the problem lay with the boards of elections struggling to process the surge in applications and part lay with mail delays. The new legislation is meant to begin the process earlier, so voters can apply as early as they want, allowing boards of elections and the Post Office more time to mail out ballots.

A third bill would make it harder to throw out an absentee ballot due to a technicality such as a missing signature if the voter’s intent is clear. The bill would require a board of elections to give a voter the chance to rectify a minor mistake. In the primary, tens of thousands ballots were deemed invalid due to technicalities like those.

The state Legislature also sent those three bills to Cuomo on Aug. 10, although Cuomo has not indicated when or if he plans to sign them. At a Monday press conference, he said he’ll “have an answer this week.” Like the expanded absentee voting bill, these two pieces of legislation automatically become law this week if he does not act on them. Senior Cuomo advisor Rich Azzopardi denied that the governor has delayed signing any of the three bills, since he legally has 10 days to consider them, despite the obvious time sensitivity of these measures and the fact that state inaction on these issues led to widespread disenfranchisement in June.

Other bills pushed by voting rights advocates didn’t pass, such as one that set up online ballot tracking so voters can see where their ballot is and if it has been processed after they mail it. This particular bill dates back to 2013 and would expand existing technology used for tracking military ballots. Others were introduced after the brief summer session in June, including one that would permit boards of elections to set up absentee ballot drop boxes like those used in other states, taking the Post Office out of the equation, but that was only introduced last week. A spokesperson for the state Senate majority said the chamber plans to reconvene before Election Day, when it could theoretically pass more voting reforms. A spokesperson for the Assembly majority did not return a request for comment. Both chambers would need to meet very soon in order for any additional measures to be implemented in time for Election Day.

The state also has not expanded early voting, something that voting rights advocates and editorial boards said would provide an alternative to absentee voting and a safer in-person option than voting on Election Day. New Yorkers still only have just nine days to vote early; according to the National Conference of State Legislatures, the average number of days in states with early voting provided is 19. The state Legislature did pass a bill that would require at least one early voting site in a county’s most populous municipality for ease of access, but that would not take effect until next year and dates back before the coronavirus. Otherwise, no other bills passed both chambers to require a greater number of early polling places nor more days to vote early, directly in response to the pandemic or otherwise. New York City voluntarily selected nearly 20 more sites for the 2020 primary than for the 2019 general election, although it still falls short from the 100 sites Mayor Bill de Blasio wanted last year.

Cuomo has thus far refrained from issuing executive orders regarding the election, as he did for the primary. He hasn’t yet required boards of elections to mail absentee ballot applications to all eligible voters, for example. Cuomo said on Friday that he would support the establishment of absentee ballot drop boxes, although has given no indication if he plans to use executive power during the ongoing state of emergency to allow boards of elections to set them up. When asked at his Monday press conference about the prospect of using his executive power, Cuomo said his administration is “looking at” potentially issuing more executive orders and will have an answer “this week.”

On the federal level, negotiations have stalled on a new coronavirus aid package, and with it, any potential new funding for state and local boards of elections. President Donald Trump has also made his distaste for mail-in voting apparent (which is the same as absentee voting despite what Trump says), making unsubstantiated and disproven claims of fraud and using New York’s dysfunctional primary as evidence that mail-in voting doesn’t work, conveniently ignoring the states where elections are conducted by mail without a hitch like Colorado. Trump said he would deny funding to the United States Postal Service and additional money for running elections because he doesn’t want to see expanded mail-in voting in November.

Trump’s new Postmaster General Louis DeJoy has also been taking steps to weaken the USPS in the runup to the presidential election through cost-cutting measures and work slowdowns that could affect the handling of mail-in ballots. In New York City reports have emerged of mail delays as a result of federal policy from DeJoy. The USPS on Sunday said it would stop removing mailboxes for at least 90 days after receiving widespread criticism for the practice, meaning that those in place now will still be there on Election Day.

But New Yorkers are not taking Trump’s attempts at disenfranchisement sitting down. Sixteen people, including state Sen. Alessandra Biaggi and congressional candidate Mondaire Jones, filed a federal lawsuit on behalf of voters and candidates against the Trump administration to ensure the USPS gets adequate funding. The suit claims that Trump and DeJoy are attempting to cripple the postal service in order to interfere with the presidential election to help Trump. State Attorneys general, including Letitia James in New York, have also indicated that they are examining legal options to combat Trump’s efforts to undermine the Postal Service.