Gotham Gazette Thu, 03 Dec 2020 14:16:10 +0000 Joomla! - Open Source Content Management en-gb (Webmaster) Brooklyn, Staten Island Democrats Look to Absentee Ballots to Help Them Hold Their Seats 3 runaway

Several local races hing on absentee ballots (photo: @JustinBrannan)

As New York election officials begin counting absentee ballots from the general election, there are dozens of races that have yet to be decided. Based on the in-person tallies, Democrats in several state and congressional races are currently running behind Republicans and are hoping that absentees will deliver them victories. But in three races in overlapping districts in Southern Brooklyn and Staten Island, areas home to more Republican voters than most other parts of the heavily Democratic city, absentees may not be enough to overcome leads buoyed by immense turnout for the GOP candidates for Congress, State Senate, and Assembly.

In New York’s 11th Congressional District, 22nd State Senate District, and 46th Assembly District, Republicans stand a chance of reclaiming Democrat-held seats after turnout swelled this year, likely in large part because President Donald Trump was on top of the ticket. Each district is home to large pockets of Republican-leaning voters, anomalies in a city where Democrats outnumber Republicans eight to one and Joe Biden received three-quarters of the in-person vote. Trump’s job performance, New York State coronavirus restrictions, criminal justice reform and public safety, and how far left New York City progressives want to take city government were all key themes in the three races.

In the 11th Congressional District, which covers the entirety of Staten Island and parts of Southern Brooklyn, first-term Democratic U.S. Rep. Max Rose trails Republican Assemblymember Nicole Malliotakis by a margin of 37,158 votes going into the absentee counting, which begins Tuesday for some districts. Though Malliotakis declared victory on election night due to her more than 15-point margin based on the in-person vote, Rose has refused to concede the race. According to New York City Board of Election data, he received 99,224 votes (42.04%) to Malliotakis’ 136,382 (57.79%).

Rose is all but assured to lose his seat, which has mostly been in Republican hands for many years. With more mailed votes still being accepted for several days to come, the latest Board of Elections numbers show there were 48,259 absentee ballots returned in the district as of Election Day – 27,598 came from Democrats, 9,213 from Republicans, and 9,508 from party-unaffiliated voters. As absentee ballots continued to come in, the Democratic share was expected to remain high, favoring Rose.

Rose also appeared on the Independence Party ballot line and 1,212 voters from the party cast absentee ballots. Malliotakis appeared on the Conservative Party line, whose voters cast 401 absentees. If Rose won all those Democrat, Independence, and unaffiliated voters, which is very unlikely, it would give him 38,318 votes, for a total just past what Malliotakis got in the in-person vote. Meanwhile, Malliotakis will easily pick up the bulk of the 9,900 Republican and Conservative absentee voter votes, not to mention some percentage of the unaffiliated voters. (Some voters will likely leave the race blank, a not-uncommon practice down ballot during presidential elections.)

Of the 48,259 absentee ballots returned as of the Election Day tally, Rose would need to win at least 88.5% of them to surpass Malliotakis, though more valid absentee votes surely came in since Election Day.

State Senate district 22 in Southern Brooklyn falls within the 11th Congressional District. It covers the neighborhoods of Bay Ridge, Bensonhurst, Fort Hamilton, Dyker Heights, Marine Park, Gerritsen Beach, and Manhattan Beach. Democratic State Senator Andrew Gounardes, also a first-term incumbent, is 6,035 votes behind Republican challenger Vito Bruno. Gounardes received 34,586 votes (45.94%) via in-person voting, while Bruno tallied 40,621 votes (53.95%).

Gounardes doesn’t face an insurmountable lead. Through Election Day, 18,524 absentee ballots were returned in the district; 11,622 were from Democrats, 2,651 from Republicans, and 3,714 from party-unaffiliated voters, according to the Board of Elections. Bruno also appeared on the Conservative and Independence Party lines, whose voters returned 101 and 345 absentee ballots respectively.

Taking the 6,035-vote margin and the 18,524 absentee votes into account, even though the latter figure has certainly grown, Gounardes would need to win 66.3% of the absentees to surpass Bruno. That percentage is not far off the percentage of absentee ballots tallied by election night that were from Democratic voters alone.

Assemblymember Mathylde Frontus from Brooklyn’s District 46 also represents some of the same neighborhoods as Gounardes and Rose. She received 15,030 votes (45.66%) via in-person voting. Her little-known opponent, Mark Szuszkiewicz, received 17,852 votes (54.23%), giving him a 2,822 vote lead heading into the absentee count.

Frontus could overcome that lead with absentee ballots largely in favor of Democrats. Of the 7,081 absentee ballots returned in the district, 4,525 were Democratic voters, 1,035 were Republicans, and 1,273 were unaffiliated voters.

To make up the 2,822-vote deficit via the 7,081 absentee ballots that came in by Election Day (a number that has surely grown), Frontus would need to win 70% of those votes. That percentage is slightly higher than the 64% of the 7,081 absentee ballots that came in from Democratic voters alone.

by Samar Khurshid, senior reporter, Gotham Gazette

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Brooklyn, Staten Island Democrats Look to Absentee Ballots to Help Them Hold Their Seats Mon, 09 Nov 2020 05:00:00 +0000
Absentee Voters Must Now Be Allowed to 'Cure' Their Ballots Under Certain Circumstances; Here's How It's Supposed to Work 8piecesofleg

Make sure to sign your ballot (photo: Ed Reed/Mayor's Office)

Among a package of changes to New York state election law passed since the chaotic June primaries is a provision that requires the Board of Elections to notify voters when their absentee ballots are on the verge of being thrown out and give them a chance to correct certain potential disqualifications. Designed to ensure possibly tens of thousands of intended votes are actually counted, the “curing” mandate applies to a handful of often disenfranchising technicalities, but the newborn steps may add a challenging addition to the already heavy load election administrators are facing as they contend with huge turnout by mail and at the polls.

Roughly 80,000 mail-in ballots were rejected by the New York City Board of Elections (BOE) in June, a vast majority due to issues with the signature on the inner "oath" envelope. Twenty-three percent of absentee ballots were rejected, roughly the same as in the 2016 presidential primary election, but with a twelve-fold increase in the total number of such ballots this year, according to the BOE. With so many people voting by mail due to the coronavirus and related expansion of absentee balloting, lawmakers attempted to mitigate widespread disenfranchisement.

Over 1 million voters had already requested absentee ballots for the general election as of October 20, according to the city BOE, which said at the time it had processed almost all of them. The deadline to request an absentee ballot is October 27. There were roughly 5,320,000 registered voters in New York City as of February 20, per State Board of Elections numbers.

Mail-in voting, like check-in at a poll site, requires the voter to provide a signature that can be compared against the one on their registration. The new law, passed by the State Legislature in July and signed by Governor Andrew Cuomo in August, applies to oath envelopes with missing or incorrect signatures, or to ballots returned without the inner envelope altogether.

If an error is found, county boards of elections must now notify the voter, explain why their ballot was rejected, and provide a form through which they may "cure" the mistake. The BOE must send the form through all possible channels, including by post and email, and must begin the process almost immediately after catching the error. Cuomo signed an executive order in August allowing administrators to begin examining ballot envelopes for possible defects "as soon as possible" (though state law requires the inner oath envelopes remain sealed and uncounted until seven days after Election Day to ensure all votes are received).

"We are encouraging the voters to return [absentee ballots] to us as quickly as possible," said BOE executive director Michael Ryan at a City Council oversight hearing in September. "It will provide the maximum period of time to engage in the newly created cure process," he told lawmakers.

"Clearly the sooner that happens the better. If it happens a day before Election Day it's going to be very difficult for the process to be completed," Ryan said. The BOE must accept absentee ballots mailed by or on Election Day (November 3). If administrators determine a ballot is eligible for remedy by the voter, the BOE must begin trying to tell the voter within a day, or the same day if the determination happened on or after Election Day.

The cure form must be completed and returned within seven days of notification if the absentee ballot was received by the city BOE before Election Day, and -- for the 2020 general election only -- within five days if it is received on or after November 3.

The statutory deadline to certify election results is November 28.

The provision may add to an already sizable headache for the BOE which has been attempting to control damage caused by a printing error that resulted in as many as 100,000 Brooklyn voters receiving an oath envelope with another voter's name. The board sent out guidance to impacted voters, instructing them to destroy old ballot materials and providing new ones.

But thousands of unsuspecting voters may have submitted the incorrect envelope with a mismatched signature. It is unclear how the ballot cure law will impact them and whether registered voters whose envelopes were mistakenly signed by someone else will be given an opportunity to cure the defects on another voter's ballot. The new curing law was not specifically designed to account for such a mistake.

An aide to State Senator Zellnor Myrie, a Brooklyn Democrat who chairs the elections committee and sponsored the cure bill, said the BOE may have no way of knowing who the incorrect signature belongs to. Administrators will be able to inform a voter whose ballot was incorrectly "used" but the person who accidentally cast the ballot -- voted, signed, and returned an envelope -- may not know that their attempted vote was not counted, unless they catch the mailing or track the status of their ballot online (a new feature in New York City this election).

The New York City Board of Elections did not respond to requests for comment for this article.

​An "overwhelming number" of invalidated absentee ballots in June were the result of completely missing signatures, Ryan said in September. To help avoid this problem, the state has placed a large, red 'X'red 'X' on the inner envelope to indicate where a signature is required.

The cure form asks the voter to attest "to the same information required by the affirmation envelope" and "that the signer of the affirmation is the same person who submitted such absentee ballot," according to guidelines issued by the State Board of Elections to county boards.

The new requirements entail brand new procedures in an already tumultuous election cycle for administrators that is expected to see enormous voter turnout for the presidential election.

Above all is the new requirement to notify voters, and state guidelines say that message must be conveyed through virtually every channel available to the BOE. When an absentee ballot is received, evaluated, and put in line for rejection before Election Day, the BOE must attempt to contact the voter at the address on their registration and the address indicated on their absentee ballot application. If the board has any email addresses or phone numbers on file, it must make attempts on all of them.

"What might be seen as the greatest departure from the normal process is the notification. Having to notify a voter that there is some defect, either by phone or email, is the introduction of a step that wasn't there before," Myrie told Gotham Gazette. In the high-turnout 2020 elections, he acknowledged that is a big lift, but one that would help "restore credibility to the [voting] process."

Some additional provisions have been set out by executive order that partially ease the burden on administrators for cures to ballots received on or after Election Day. When Cuomo signed the bill into law, he included a memorandum saying it would apply for the 2020 general election but would be revisited to determine its permanence.

For ballots received on or after Election Day, which is November 3, the guidelines allow administrators to forgo a physical mailing unless both no email is available and no contact is made by phone. The leeway applies only to the 2020 general election.

The guidelines also say county boards must notify voters even when their ballots are rejected for reasons that are not curable. If the cure itself is rejected before Election Day, administrators are required "to the extent practicable" to inform voters and give information of alternative ways to vote.

"There is an entire process set up by which they examine absentee ballots...what this bill does requires them to then make a notification," Myrie said. In doing so, it also adds a new document that will need to be processed on a large scale.

All of this takes time and resources. The BOE estimates the total canvassing process -- the time it takes to review all the votes cast -- will take 21 days from Election Day, placing final official results somewhere around November 24.

Part of the extended timeline is because envelope signatures for mail-in ballots are examined by hand by bipartisan teams -- one Democrat and one Republican -- as are many functions carried out by election administrators. If the BOE team makes a preliminary ruling of a mismatched signature, a team of managers reviews the decision. State guidelines advise boards that signatures are variable and may not always match the one on file, even if they are correct. The state BOE has instructed local administrators to "presume that the documents were signed by the same person."

The BOE expects a high number of ballot cures but a report on the city's staffing needs, submitted to the state Board, omits information on the status of personnel hired to carry out the process.

"Given the anticipated volume of individual cures and to ensure the timely processing of same, the final stages of automation to assist in processing is being completed. Upon completion, the Board will finalize the number of staff assigned to this task," reads the report. As of October 14, the city BOE had not provided those figures to the state.

A spokesperson for the state Board said they believed recently purchased vote-sorting machines have the ability to file ballots based on missing envelope information.

Other issues don't require a cure according to guidance from the state BOE. That includes wrongly placed signature, incorrect date, use of pencil or pen, extra paper when it is material provided by the BOE, random marks or tears on the envelope that look like the result of mailing.

When voting by mail and hoping to avoid the curing process altogether, voters should ensure both the return envelope and inner "oath" envelope are fully sealed, and that the inner one is signed and correctly dated.

by Ethan Geringer-Sameth, reporter, Gotham Gazette

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Absentee Voters Must Now Be Allowed to 'Cure' Their Ballots Under Certain Circumstances; Here's How It's Supposed to Work Sun, 25 Oct 2020 04:00:00 +0000
51,000 Workers at 1,200 Sites: Board of Elections Scrambles to Prepare for General Election press conf barclays

Council Member Laurie Cumbo at an election promotion event (photo: John McCarten/City Council)

An October 5 staffing report from the New York City Board of Elections (BOE) to state regulators shows a scramble to prepare for the general election less than a month before Election Day.

The BOE was over a month late to submit the plan, which was required by Governor Andrew Cuomo through executive order to ensure local election administrators had the necessary personnel to manage the expected surge in both in-person and absentee voting. The plan, which was obtained by Gotham Gazette, reveals continuing operational unknowns and tens of thousands of poll workers yet to be trained.

The board stated it was aiming to train over 51,000 employees to work the polls on Election Day, a 150% increase from the number who ended up working during the 2016 general election. Some of those positions are a response to the new reality of voting in a pandemic -- specifically dedicated to managing lines, ensuring social distancing, and receiving absentee ballot drop-offs.

The city Board of Elections is anticipating over a million absentee ballots, which voters may mail or hand deliver to poll sites, and as many as 5 million total votes.

The BOE is planning to open 88 early voting sites and 1,201 Election Day poll sites citywide to receive the flood of voters.

But two-thirds of Election Day poll workers, roughly 33,500 people, had not gone through the city board's training as of the October 5 release of the report. The New York City Board of Elections did not provide more up-to-date information when asked by Gotham Gazette.

"No comment. With 9 days left before early voting, we do not have the staff to look into this data request," wrote Valerie Vazquez-Diaz, a BOE spokesperson, by email. The BOE has been conducting a series of trainings for those who will work the polls.

John Kaehny, executive director of the good government group Reinvent Albany, criticized the BOE for an apparent lack of preparedness. "The NYC BOE's staffing report shows that once again, the Board is struggling to keep up: It has a month to train 33,000 poll workers. That's a big number, and it's inevitable that this last minute catch-up is going to cause problems," he wrote in an email to Gotham Gazette after reviewing the report.

He blamed the board's explicitly bi-partisan make-up for inefficiencies and mismanagement: "In the best of times, the NYC Board of Elections is behind and barely able to meet its responsibility to voters. This is because the Board is a political patronage mill controlled by county political bosses and much less competent than a non-partisan city agency staffed and run by civil servants."

On top of Election Day poll workers, who make up a bulk of the administrative staff, the board is hiring approximately 3,000 early voting workers to staff the 88 sites. The report says training for that cohort would take place from October 5 through 19. Early voting begins on October 24 and runs through November 1. Election Day is November 3.

Poll workers are needed to check voters in, verify their signatures, and provide their ballot. They must make sure lines move and voters know how to feed their ballots into the voting machines. This year they will have the additional task of accepting absentee ballots that have been dropped off on top of the anxiety of maintaining public safety protocols at poll sites amid a pandemic.

About 4,800 workers have been hired specifically for line management, to reduce waiting, and help maintain social distancing. Their training is taking place virtually, according to the report. The BOE said it was deploying additional supplies to poll sites to "optimize voter flow," but did not provide specifics in the report. In response to questions from the State Board of Elections about whether it had changed the spatial layout of poll sites to facilitate traffic, the BOE stated: "Yes (wherever possible)."

The BOE also predicted it would need 165 workers before Election Day to process absentee ballots, which includes receiving absentee applications, distributing requested ballots, and securing returned ones.

Training this year is a combination of in-person and virtual instruction. The BOE has secured some larger venues, on top of its traditional training locations, "to maintain social distancing and to simultaneously conduct multiple classes at individual facilities," according to the report.

"From what I understand, they do it in a relatively efficient way," said Sarah Steiner, an election lawyer and expert of New York election law and administration, by phone. "A lot of poll workers are not first-timers."

In 2016, between a fifth and a quarter of the poll workers in each borough were first-time employees. It is not clear how many of the roughly 18,000 additional positions the BOE is looking to fill with new personnel.

"I'm hoping that there are enough poll workers. Many of their poll workers are older people and even though I saw them working the polls in June, a lot of them weren't there too," Steiner said, referring to the heightened health risks seniors face in the pandemic.

"And you have to remember that when you send these people to training, you'll have a certain amount of attrition," she added.

The report says the election will take 21 days to canvass, or finish counting -- a high number correlated with the high volume of expected mailed-in ballots. State law requires each absentee ballot to be hand-tabulated by bi-partisan teams of two. The BOE estimated it needs 380 workers to canvass the ballots (of which 300 had been hired by October 5) and about 440 for the legally-mandated "recanvass" to confirm the count. The canvassing process must be completed before the official results are published.

The 21-day projection, despite being far longer than in a typical election, would land the BOE four days before the November 28 statutory deadline to certify results, and would be significantly shorter than the six weeks it took in the primaries. It is also two to three weeks shorter than the mid-December estimate BOE executive director Michael Ryan told lawmakers at a New York City Council oversight hearing last month.

Another new and mammoth task for the BOE has to do with a law passed by the State Legislature and signed by Cuomo after the chaotic June primaries, which requires election administrators to notify voters when their absentee ballot has a disqualifying error and give them an opportunity to "cure" the mistake. The provision tracks (to an extent) the due process rights afforded by affidavit ballots available at poll sites, but it also adds a voluminous administrative burden during pandemic voting.

One of the deficiencies that triggers the curing process is a missing or mismatched signature on the ballot's outer envelope. Already, vendor errors that resulted in close to 100,000 voters in Brooklyn receiving someone else's outer envelope could lead to tens of thousands of incorrectly signed votes being sent in, all of which by law are entitled to a review by the voter. The BOE has contacted the impacted voters and provided them new envelopes and ballots. It is unclear how administrators will interpret the new law's impact on any erroneous signatures caused by administrative blunders.

According to its report to the State Board, the BOE does not yet have a grasp on how the new mechanism will impact its operations, but infrastructure must be established and the city BOE's report hints that it is a daunting requirement.

"Given the anticipated volume of individual cures and to ensure the timely processing of same, the final stages of automation to assist in processing is being completed. Upon completion, the Board will finalize the number of staff assigned to this task. The Board will update this information no later than October 9, 2020," the city BOE report reads.

On Wednesday, Douglas Kellner, the Democratic co-chair of the State Board of Elections, told Gotham Gazette the city BOE had still not provided the promised update.

The Governor's Office did not respond to requests for comment about the content of the report or the BOE's preparedness to implement the curing provision. Mayor de Blasio this week has reiterated his calls for a total overhaul of the Board of Elections to make it a nonpartisan, fully professionalized entity.

by Ethan Geringer-Sameth, reporter, Gotham Gazette

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51,000 Workers at 1,200 Sites: Board of Elections Scrambles to Prepare for General Election Thu, 15 Oct 2020 04:00:00 +0000
When Can New Yorkers Expect General Election Results? City and State Officials Give Different Answers presidential state city

New Yorkers soon head to the polls (photo: Edwin J. Torres/Mayoral Photo Office)

The 2020 general election results in New York City may not be known until mid-December, six weeks after Election Day, according to Michael Ryan, the executive director of the New York City Board of Elections.

Ryan told members of the New York City Council Friday that New Yorkers could expect election results between December 8 and 15, around the same length of time it took in the primaries but ages beyond the unofficial results New Yorkers have come to expect on election night. The timeline means certified results will come just in time for the Electoral College to formally select the next president by the mid-December deadline.

"We have to complete certification in order for the electors in the Electoral College [to vote], so I would say in the December 8 to December 15 range." Ryan said at an oversight hearing Friday in response to questions from members of the Council's Committee on Governmental Operation.

"But we're already working on all of that and the idea is to try to get it done as quickly as we possibly can. We don't want to play brinkmanship," he said.

The Electoral College is set to formally elect the president on December 14.

State regulators said Ryan's projection misses the deadline to certify results set in New York's election law by about two weeks.

"I will simply remind the city board that the statutory deadline for completing the canvass is November 28," said Douglas Kellner, co-chair of the State Board of Elections, which has oversight power over local boards, in his testimony later in the Council hearing.

"I point out that that's the Friday after Thanksgiving and the state board has made it very clear that the counties must gear up to meet that," he added.

As was the case in the June primaries, finding out the winners will take weeks due to the high volume of absentee voting expected in the general election. On the ballot this year along with president and vice president are races for all of New York’s seats in the U.S. House of Representatives and both houses of the State Legislature, among other state and local offices.

Traditionally, local boards of elections have been able to confidently publish "unofficial" results on election night, a tally of all the in-person votes cast. In a typical New York election, these account for a vast majority of votes, with official results released later once a relatively small number of military, overseas, absentee, and affidavit ballots are counted. But with absentee voting expanded to all registered voters due to the coronavirus pandemic, mailed ballots could make up nearly half the total ballots. In New York City, the BOE is anticipating as many as 1 million absentee votes, Ryan said.

Absentee and other mailed-in ballots take more time to be counted. Along with other requirements, officials must crosscheck each ballot with those received at each of New York State's 62 county boards of elections to ensure that no absentee voter voted at a poll site -- any in-person vote nullifies a mailed vote.

There are some steps administrators can take to try to speed up ballot canvassing (the actual counting of votes), but they are limited by statutory requirements.

One method is to maximize the number of ballots cast in person, which can be tallied almost immediately by ballot scanning machines at each poll site, but which in the pandemic comes with some health risk, especially for the most vulnerable populations. The BOE and other city agencies have been promoting early voting as an option for in-person voting that does not carry as much risk of exposure to COVID-19 as a crowded poll site would. There will be eight days of early voting offered from October 24 through November 1; Election Day is November 3.

The New York City Board of Elections has also purchased ballot counting machines for each borough, which have the capacity to digitally scan and copy two-sided ballots and ballot envelopes. The technology will save hundreds of BOE staff person-hours typically required to make photocopies of ballot material to be used as evidence in court challenges. The scanners mean more efficiency in handling ballot challenges and more personnel and space available for canvassing.

by Ethan Geringer-Sameth, reporter, Gotham Gazette

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When Can New Yorkers Expect General Election Results? City and State Officials Give Different Answers Sat, 26 Sep 2020 04:00:00 +0000
Sign By the Red X: New York Election Officials Unveil New Envelope to Ensure More Absentee Votes Get Counted kings abs oath envelope pg2b

Part of the new absentee ballot envelope design

The New York State Board of Elections has approved a new design for absentee ballot envelopes to be used statewide in the upcoming general election. The new layout, mandated by Governor Andrew Cuomo in an executive order, is intended to make it more obvious where a voter needs to provide a signature in order to have the ballot accepted by elections administrators under state law and avoid mass disqualification of absentee ballots as New York saw during the June primaries.

The design, shared by the State Board of Elections upon request by Gotham Gazette, is actually for three envelopes, which accompany every absentee ballot: an outer envelope, a return envelope, and what is known as the "oath envelope," which a voter must sign to certify they are registered and voting lawfully. The new oath envelopes will have a sizable red 'X' where the signature is required, an attempt to avoid the most common reason absentee votes were disqualified.

The envelopes, which were developed in consultation with Center for Civic Design and local boards of elections, were designed to have either one language (English), two languages, three languages, or five languages, depending on the jurisdiction. The number of languages required is dictated by the federal Voting Rights Act. For example, Brooklyn will have a three-language envelope and Queens will have a five-language envelope.

While Cuomo directed the State Board of Elections to develop the envelopes, they did not require his approval, according to a spokesperson for the governor.

Failing to provide a signature is a key reason absentee ballots were thrown out during the June primaries. The measure could help ensure that thousands of absentee ballots are counted in the general election that may otherwise have been tossed due to a missing oath. In New York City, 23 percent of the roughly 400,000 absentee ballots cast were rejected, "the overwhelming number" of which were for missing signatures on the oath envelope, according to Michael Ryan, the executive director of the New York City Board of Elections, in testimony to the New York City Council on Friday.

"I do not have a specific number but I can tell you that is going to be the vast majority," Ryan told the Council's Committee on Governmental Operations, which was conducting oversight over the June primaries and the upcoming general election, when asked by Chair Fernando Cabrera about the prevalence of the problem.

"This is directly analogous to election day," Ryan said. "A signature is the gateway to the ballot. If you do not provide a signature, you do not get a ballot."

"The only difference between election day and absentee balloting is the signature is captured in a different process but it must be captured nonetheless. And if it's not captured it's not valid," he added.

Election Day is on November 3 and New York's early voting period will be from October 24 to November 1. Due to the COVID-19 pandemic, absentee voting eligibility has been extended to all registered voters and hundreds of thousands of absentee ballots have already been requested across the state. In addition to the presidency, many other federal, state, and local offices will also be on the ballot, including Queens Borough President.

Absentee ballots may also be rejected for other technicalities, including for having stray markings on the ballot or extraneous paper in the envelope, or for having an envelope that isn't fully sealed. Several pieces of legislation have been introduced to eliminate these obstacles, but not all of them have passed and been signed into law. One solution that was passed and will be in place for the general election is a measure that requires election administrators to notify voters when their ballot is rejected and give them an opportunity to fix the mistake.

But most of the errors are dwarfed by the frequency of missing signatures. Another reason some absentee ballots were rejected this summer is because the post office failed to postmark them, an issue beyond the control of voters. That was a particular issue in Brooklyn where roughly 4,500 un-postmarked ballots were initially rejected, according to Ryan (the other boroughs lost about 100 ballots each to the postmarking issue, he said), but later counted after a court challenge. In terms of other technicalities, "They really don't occur all that often," Ryan said.

by Ethan Geringer-Sameth, reporter, Gotham Gazette

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Sign By the Red X: New York Election Officials Unveil New Envelope to Ensure More Absentee Votes Get Counted Fri, 25 Sep 2020 04:00:00 +0000
Can New York Officials Deliver November Election Results in a Timely Fashion? 3 how election official

"Every Vote Counts" (photo: Michael Appleton/Mayoral Photography)

While New Yorkers have come to expect challenges in the voting process, they’ve also come to expect "unofficial election night results" rolling in in the hours after polls close -- a tradition that sometimes entails staying up late to find out the winner of a close race, or waking up the next day to a new leader-elect who had been only a hopeful when voters went to the polls.

But with the unprecedented volume of mail-in ballots for the June primary this year, some races took up to six weeks for clear winners to become apparent, during which time uncertainty about the results and fears of what the delay portends for the already-fraught general election reverberated across New York City. With the promise of skyrocketing turnout less than 80 days away, and Governor Andrew Cuomo and the State Legislature indicating New York will again greatly expand absentee voting, few of the challenges to the timely counting of ballots have been resolved and representatives of the New York City and New York State boards of elections have said little about what they are doing to improve the process.

In the June primaries, the New York City Board of Elections (BOE) sent 775,000 absentee ballots to voters -- twelve times the number mailed in 2016 -- and received over 400,000 back. In the fall general election, with races for President, Congress, the State Legislature, Queens Borough President, and other offices, the State Board of Elections is expecting as many as 5 million absentee ballots to be cast statewide -- a four-fold increase from the 1.2 million received in the primaries, which strained election infrastructure across the state. With the Electoral College set to formally select the president on December 14, the New York City Board will again have to certify the election results within six weeks of election day, this time contending with vastly more ballots. Even if they can meet the statutory requirements, as some administrators appear confident of, many want to see a tighter timeline.

Lawmakers have passed or proposed a series of bills that would again expand absentee eligibility for Covid concerns as well as others that aim to address problems that arose in the primaries. On August 11, the State Senate and Assembly held a joint oversight hearing where officials raised concerns about preparedness for the fall and mishaps with absentee requests, delivery, and counting in the primaries, which in New York City resulted in 80,000 mail-in ballots being rejected.

The New York City Board of Elections is taking some steps to scale up its absentee counting operations, like purchasing new technology and encouraging people to take advantage of in-person early voting, a nine-day period from October 24 through November 1. Election Day is November 3. But very little is public about what other measures are being taken to prepare for the onslaught of mailed ballots or what resources are available to the board.

To count all the ballots requires personnel, space, and machinery, and to do it quickly means more of everything. That all requires money and a pool of workers, both of which have become hard to come by in a pandemic.

A typical general election costs anywhere from $20 to 25 million, according to the State Board of Elections. For the 2020 general election, administrators expect they will need twice that.

"To do everything, we need $50 million, conservatively," State Board of Elections Co-Chair Douglas Kellner told state lawmakers at the August 11 oversight hearing.

In March, New York State received $20.5 million in federal CARES Act funding to cover election-related expenses that rose due to the pandemic, and counties received an additional $4.1 million in state funds. The State Board of Elections established a grant reimbursement program to distribute the federal funding to local boards, which have spent roughly half of it, according to testimony provided to the State Legislature. It is unclear how much of that has gone to New York City and how much the NYCBOE has spent. Neither the New York City nor State board of elections provided comment or information requested for this story, including about how much money is available to New York City for ballot-canvassing in the general election.

In Fiscal Year 2020, which ended at the end of June (after the primaries), the New York City Board of Elections was allocated $246 million in city funds and saved $31 million by only running one election between March and June, instead of two as had been planned but changed due to the pandemic, according to a spokesperson for the Mayor's Office of Management and Budget (OMB). That budget was nearly twice what was available in FY19, largely due to start-up costs associated with early voting.

In the current fiscal year's budget, which went into effect July 1 and was negotiated during the pandemic, the city allocated $136 million to the BOE. That money is meant to cover the general election this fall and the primaries for city offices set for next June.

"We are monitoring the BOE’s needs, and will make sure that they are properly funded for this year's elections," a spokesperson for OMB wrote to Gotham Gazette.

The extent of the city's canvassing needs are obscure, in part because of uncertainties about potential changes to election rules, either via state legislation or gubernatorial order, and the state of the coronavirus outbreak -- and in part because of a lack of information coming from the city BOE.

One week after the August 11 oversight hearing, the board still has not submitted its written testimony to the Legislature’s elections and governmental operations committees (or to Gotham Gazette after multiple inquiries). In his oral testimony and in response to questions from lawmakers, NYCBOE Executive Director Michael Ryan focused more on obstacles to mailing ballots to voters and the 80,000 ballots that were disqualified than on changes that could improve the ballot count and deliver speedier results.

Asked whether the BOE would be able to certify the election by the deadline for electors to choose the president, Ryan said "yes," without indicating whether any effort would be made to expedite the process.

"The City Board of Elections, long before I got here and since I've been here, has met many challenges and we have always found a way to get the job done, ultimately, despite what some others may think," he said.

Representatives for the State Board of Elections, a regulatory body, have not responded to requests for the information they have on the city board's canvassing efforts and challenges.

Earlier this month, the New York City Board of Elections approved the purchase of mail-sorting machines -- one for each county (borough) -- at a cost of $1.5 million. The machines are capable of opening, sorting, time- and date-stamping, and digitally scanning up to 15,000 ballots an hour, according to Sherwin Suss, the agency's chief contracting officer, in a presentation to commissioners on August 4.

Ryan said the agency was exploring whether it will need back-up machines from the supplier, Neopost USA.

"We will pursue those other avenues of process with the chiefs and deputies and with the vendor to determine what additional pieces of equipment we will need," Ryan said, referring to the leaders of the board's borough offices and Neopost. "We will treat this five as a floor."

The machines, which are set to arrive in October, will undoubtedly ease the BOE's logistical burdens, and their ability to scan ballots alone could save an immense amount of physical labor. In the primaries, "our borough offices copied over 443,000 individual absentee ballot envelopes, which required two pages, so that was almost a million pieces of paper that had to be photocopied for challenges and court cases," Ryan said at the oversight hearing.

Even with the technological upgrades, personnel for the actual counting of ballots, which by law must be done by hand, is still an issue.

"Recruiting personnel to actually physically count ballots is probably the hardest part of our recruiting personnel," said Dustin Czarny, an elections commissioner in Onondaga County and chair of the Democratic Caucus of the New York State Elections Commissioners Association, in an interview. "They need more training and more expertise than, say, a normal election inspector that is at the polls."

"This is not something that can be trained easily -- you learn by doing," he added. There are a number of technical and statutory "quirks" to canvassing ballots, which require training and care, Czarny said. Canvassers have to know how to open and count ballots making sure each vote is properly reviewed, that anonymity is maintained, and that votes are not being disqualified without cause.

"A lot of that has to come through the experience of dealing with absentee ballots, which we've never dealt with on a scale like we have now," he said.

The pool of experienced canvassers is small -- a perennial challenge for administrators -- and shrinking.

Boards of elections often rely on retirees to make up the poll-worker and -inspector pool. With seniors among the most vulnerable to COVID-19, administrators around the state are scrambling to fill vacancies. Czarny hopes that the fact that canvassers generally don't interact with the public will make that specific recruitment easier: "the risk will be less, but whether we can convey that" is another story, he said.

Another obstacle is related to the BOE's bipartisan structure, a vestige of anti-corruption sentiments at the turn of the last century.

In New York State, for every ballot cast there must be a designated Democrat and Republican canvassing each vote. That means boards will need to hire two times the number of ballot canvassers than is physically necessary to tally up the votes, even with the historic surge in turnout expected in the presidential election.

More personnel also means more tables to sort and count ballots, and more space to house them. With the coronavirus pandemic requiring social distancing, the BOE's space needs are growing exponentially.

An executive order signed by Governor Cuomo on August 24 requires local election boards to submit staffing plans, including personnel needs, to the State Board of Elections by September 20, providing an opportunity for the state board to assist if possible.

Statutory Hurdles
Even without resource challenges, there are certain waiting periods built into state election law that, in conjunction with growing absentee voting, will likely delay general election results.

The statutory deadline for boards of elections to accept absentee ballots is seven days after an election, so the actual tally cannot begin until after that time (November 10 this year).

"That's sort of baked into the process," said Sarah Goff, deputy director of the good government group Common Cause New York.

Normally, with a few thousand absentee ballots cast statewide their impact on the final results is trivial, allowing local boards to publish "unofficial" results shortly after the polls close. But with potentially 40 percent of voters voting absentee statewide, the deadline poses a significant obstacle to getting the final outcome with any of the expediency New Yorkers are used to.

Once the seven-day period is up, administrators still can't simply start counting ballots. New York State law permits a voter to vote in-person even if they have cast an absentee ballot, with the in-person vote usurping the mailed ballot. Ensuring the right ballots are being counted takes time.

"Once they hit that seven-day cutoff point in terms of ballots received, they then have to go through this time-consuming, but obviously necessary, process in which they cross-check absentee ballots against folks who voted in person," Goff said, adding that New York is one of the few states that allows in-person voting to override an absentee ballot. "And then they will finally start to count the ballots."

The process could take days, meaning the actual canvassing of ballots may not begin until 10 to 14 days after Election Day, according to Goff.

"Obviously, looking ahead to November, they will be better prepared given that they've gone through this already once, they know what to expect in turns of increased volume, and can sort of roughly project the volume that they are going to see," she said. But the coronavirus pandemic is unpredictable and an uptick in cases could drive up the number of absentee ballots beyond the current estimates.

Cuomo's August 24 executive order will help boards expedite the counting by allowing them to start processing, though not necessarily opening, received ballots before Election Day. The change will speed up the process of settling contested ballots, but won't impact the seven-day post-Election Day period to receive mailed ballots.

Early voting "in the middle of a pandemic"
One thing advocates want to see is a better use of alternatives to absentee voting, particularly early voting, which first rolled out in 2019.

"Early Voting sites were not properly promoted, they promoted absentee ballots," said Sarah Steiner, a New York City-based elections lawyer, of the city's and state's approaches during the primaries. But doing so "would be the biggest thing that I think they should do," followed by establishing additional early voting locations, she said.

In his oral testimony to the State Legislature, Ryan said the BOE would be undertaking a public education campaign around early voting "through social media and other outlets." For the primaries, the Board of Elections expanded the number of early voting sites from 61 to 79 in New York City.

"The board increased -- increased -- the number of early voting sites by 30 percent in the middle of a pandemic," Ryan told lawmakers.

Nevertheless, only about 52,000 took advantage of the option, just 6 percent of the city's total turnout in the Democratic primaries.

by Ethan Geringer-Sameth, reporter, Gotham Gazette

Read more by this writer.

Note: this story has been updated with two pieces of information about Governor Cuomo's August 24 executive order, issued after this story originally published.

Can New York Officials Deliver November Election Results in a Timely Fashion? Tue, 18 Aug 2020 04:00:00 +0000
As New York Looks for Smoother General Election, Long List of Voting Reform Bills Awaits Governor’s Signature or Legislative Action passed prop what

Inspecting voting equipment (photo: Senator Michael Gianaris)

The June 2020 primaries in New York were an unusually thick morass of bureaucratic challenges as the city and state election systems shifted to a mostly-mail-in format amidst the coronavirus outbreak.

In New York City more than 80,000 mail-in ballots were disqualified on technical grounds -- a full fifth of the 400,000-plus ballots cast that way and a tenth of the total. Tens of thousands of ballots were either sent out late by the New York City Board of Elections or never delivered to voters who requested them.

Thousands of ballots were thrown out by the city board because they weren't postmarked by the U.S. Postal Service, a move that was overturned last week by a federal judge who blamed "systemic failures" for the mass disqualification. The State Board of Elections said it would appeal the decision -- asserting that counting the rejected ballots now, as one commissioner put it, "will place a tremendous burden on the local boards of elections as they are preparing for the November general election and is highly unlikely to change the results in any contest" -- but the New York Attorney General, Letitia James, decided otherwise.

With fewer than 90 days until Election Day, administrators, lawmakers, voting reform advocates, and voters are looking ahead to the general election, where the presidential contest is expected to draw a groundbreaking number of voters. It is unclear how many will be heading to the polls versus voting by mail, especially given uncertainty around what the virus transmission risk will be and what provisions for broad absentee voting will be in play.

On Tuesday, the New York State Legislature is holding a joint oversight hearing to review the 2020 primaries as the fate of legislation impacting the way elections are run remains up in the air. There is a long list of voting-related bills that fall into three categories: those passed by both houses of the Legislature and waiting action by Governor Andrew Cuomo; bills passed by one house of the Legislature; and bills passed by neither house. There are also the matters of steps Cuomo might take by executive action, depending on what the Legislature does and developments between now and the fall election; administrative changes the New York State and City Boards of Elections might make, including around beefing up personnel; and the status of the Postal Service, which President Donald Trump appears to be targeting.

To reach the unprecedented expansion of mail-in voting in June, Governor Andrew Cuomo signed a series of executive orders expanding eligibility, requiring pre-paid postage, and even mandating that every registered voter eligible for the primaries received an absentee ballot application in the mail.

In response to the mess that unfolded, state lawmakers in July passed a series of bills aimed at codifying or adjusting elements of the absentee ballot mailing and counting procedures to set clearer and more practical standards for local boards of elections. The governor has yet to sign any of them, nor has he said whether he would sign new executive orders, while elections experts and some legislators say the legislation alone will not be enough.

"I believe that they will be signed by the governor," said Assemblymember Charles Lavine, a Nassau County Democrat who chairs the Assembly’s election law committee and sponsored one of the bills, by phone.

"But beyond that," he continued, "I believe that if for whatever reason the governor decides not to sign any of the bills, the governor will himself cover the provisions of those bills through executive orders."

"We are reviewing the bills," wrote Caitlin Giouard, a spokesperson for Cuomo, in an email. The bills were delivered to the governor on Monday, according to the State Senate's website, giving him 10 days to act (not including Sundays) before they automatically become law.

Codifying and Improving the Expanded Absentee Voting Process for Fall 2020
The centerpiece of the package, passed by the Democratic-controlled State Legislature in the special session last month, is a bill sponsored by Senator Alessandra Biaggi and Assembly Member Jeffrey Dinowitz, both Bronx Democrats, that would broaden the definition of "Temporary Illness" -- one of the acceptable excuses for absentee voting under state law -- to include the risk of spreading or contracting an illness like COVID-19.

The bill is similar to Cuomo's executive order for the primaries, which has expired, except that it applies to diseases beyond COVID-19.

"All of these executive orders are subject to renewal and expansion and contraction and ending. They're executive orders and nothing else is really happening," said Sarah Steiner, a veteran election lawyer in New York State. "Nothing is in effect for the general election."

Three of the other bills in the package aim to correct issues that arose in June, when the absentee voting option, which previously served voters numbering in the thousands each election, was taken by hundreds of thousands.

One partially solves the postmark issue by saying that ballots that were received by a board of elections on the day after election day will be counted, even if they are missing a postmark.

The judge's ruling last week expanded that buffer to two days after election day for missing postmarks, but advocates say that still leaves a large window within the acceptable statutory timeframe that mailed ballots must be accepted when they do have a postmark.

"They're willing to protect votes one day later with no postmark and two days later with no postmark, and that leaves a five-day hole," said Jarret Berg, an election lawyer in New York and co-founder of the advocacy group Vote Early NY.

"How you treat certain ambiguities in the election law, that's for the State Board to clarify," he added. "There is the statute, and we can clean some of that up, but between the statute and what the counties are doing is the State Board. It's either a vacuum or they put down some clear rules."

Berg says the State Board of Elections, a regulatory and oversight body governing county-level election boards, should be playing a bigger role in setting uniformity among the various pieces of the elections bureaucracy, including the increasingly prominent USPS. "Why isn't there a three-page MOU between the head of the Post Office in New York and the State Board of Elections that just explains how you handle election paper?," Berg asked rhetorically.

"The USPS has already acknowledged in writing they are supposed to postmark every piece of election mail by their own rules and regulations," wrote John Conklin, a spokesperson for the State Board of Elections (SBOE), in an email to Gotham Gazette.

"The SBOE and the local boards worked with the Postal Service’s Media Design teams to ensure that every county’s absentee ballot mail pieces were to USPS’s exact specifications so they would be tracked according to how the USPS needed them and word still didn’t get out to all post offices," Conklin wrote. "I don’t know what an MOU would do. We’ve been talking with USPS for months on these matters."

"The Postal Service’s policy is to postmark ballots, regardless of the postage-payment method," wrote Xavier Hernandez, a spokesperson for the USPS, in an email to Gotham Gazette. "Leading up to the June 23rd election, the Postal Service instructed employees in New York State about the Postal Service’s ballot postmarking processes and procedures. All delivery units in New York, reviewed the standard operating procedures for ballot postmarking."

"We are aware that some ballots may not have been postmarked and have taken action to resolve the issue going forward," he added. "We continue to work with the Secretary of State and all New York Boards of Election and look forward to a successful general election."

Another bill would allow voters to apply for an absentee ballot prior to 30 days before an election, which would give local elections administrators more lead time to begin processing them.

That was a problem in June, when thousands of registered and eligible voters did not receive their requested ballots until it was too late to cast them, or not at all.

"To those voters who did not have an opportunity to cast their ballots in the primary election, we should apologize for not doing more," wrote Douglas Kellner, the Democratic Co-Chair of the State Board of Elections, in a memo to the New York City Board of Elections.

"Elected officials and others warned that we were not deploying sufficient resources to mail out absentee ballots in a timely manner, and in hindsight we could have done more to address that problem," wrote Kellner (who was the same commissioner who said canvassing non-postmarked ballots cast in June after election certification would be a "tremendous burden").

Another bill, sponsored by Lavine and Senator Zellnor Myrie, a Brooklyn Democrat and the State Senate's elections committee chair, would create a kind of remote curing process for absentee ballots that are not accepted due to a technical error. If an absentee ballot contains certain "deficiencies" like a missing signature, the voter will be notified and given a limited window to correct the mistake. But some voting advocates say the bill could have gone further to give voters more time to fix a wider range of technicalities.

"Arguably, no bill goes far enough," Lavine told Gotham Gazette. "I'm very pleased that we were able to take the first steps...We're going in the right direction.”

"I do understand the critique of the voting rights advocates but our government is all about compromise," he added.

The New York City Board of Elections, which is responsible for roughly 40 percent of the state's registered voters, would not comment on the package. "We don't comment on pending legislation," wrote board spokesperson Valerie Vazquez in a text message.

In June, Cuomo signed legislation permitting voters to apply for absentee ballots online after the June primary, a codification of part of his executive order. But there appears to be no legislation to require election administrators to proactively mail absentee applications to registered voters, as they were required to do by executive order for the primaries.

Other Voting Reforms on the Table; Registration Deadlines; & More
Some bills that advocates want to see before the governor have thus far failed to gain traction in both chambers of the Legislature, including some related to counting ballots despite certain deficiencies.

One would require boards of elections to count ballots where the envelopes have been sealed by tape or glue, as opposed to by the built-in adhesive. Another would require counting when the "intent of the voter is unambiguous," ensuring that a ballot will be accepted if a voter fails to provide a particular signature or date. Both bills are still in committee.

On Friday, State Senator Brad Hoylman, a Manhattan Democrat, introduced a bill that would allow local boards of elections to set up secure drop boxes for voters to submit their absentee ballots, rather relying on the postal service.

Hoylman and Assembly Member Dan Quart, another Manhattan Democrat, also sponsor a bill that would allow voters to track their absentee ballots like they would a package in the mail, and requires boards of elections to provide an explanation if the ballot is rejected. The bill has not advanced in either house.

For the June elections, Cuomo's executive order provided that the absentee ballots include postage paid envelopes, which they are currently not required by law to do. Senator James Sanders Jr., a Queens Democrat, and Dinowitz introduced legislation to codify that for future elections, but it has not come to a vote.

A different bill, which would allow online voter registration for New York City residents, passed the Senate but remains in committee in the Assembly. The bill would sunset in 2021, when the state's online voter registration portal is expected to launch, but would allow online registration in the city amid a massive drop in new voter registration brought on by the pandemic.

New voters must register by October 9 in order to vote in the 2020 general election in New York.

In July, the Senate and Assembly passed a bill establishing automatic voter registration, which does not go into effect until 2023. The bill requires certain government agencies to establish a procedure with the State Board of Elections to automatically register clients to vote when they provide the necessary personal information when seeking services.

Earlier this year, Myrie, the Senate's elections committee chair, introduced the John R. Lewis Voting Rights Act (posthumously renamed) that would codify elements of the federal VRA into state election law. The bill has no Assembly companion at this time.

Many of the measures suggested by voting advocates and state elections administrators would require more personnel and resources, either to process absentee ballots, better utilize the state’s new early voting option, or address Election Day delays.

In his memo to the New York City Board of Elections, Kellner said the city board would have to take far greater steps to ensure shorter lines at poll sites during the likely explosive turnout of the general election. He implored the city board to strive to ensure voters aren't waiting at poll sites more than 30 minutes, as mandated by state law ("New York City has never come close to meeting that mandate in presidential general elections," he wrote) and suggested having the city close down streets and set up tents for outdoor voting near poll sites. In terms of processing absentee ballots, he said administrators need to "dramatically scale up" the number of tables and personnel dedicated to counting ballots.

"New York City has more poll workers than needed for primary and special elections and is understaffed in many locations for the presidential election," Kellner wrote. "The solution is obvious, albeit not so simple to accomplish. We need more registration check-in tables. That is where the bottlenecks typically occur. Yes, more tables mean that we need more poll-workers to staff these tables, and that means that we need more space."

Steiner, the election lawyer, believes the state's new early voting option has been under-promoted and under-utilized.

"You had nine days of early voting and only something like 52,000 people voted," Steiner said. "But those nine days that there are massive halls in which people can go and vote at their leisure" could have accommodated more socially distant in-person voting, she said. "You could have half the people voting early and it wouldn't be any stress on [elections administrators] at all."

A bill passed in July that goes into effect in 2021 would require counties to establish an early voting site in the largest population center, an additional requirement to the mandate that they be established for every increment of 50,000 voters. New York City would not be affected since it is a municipality that spans five counties (the five boroughs).

There are nine days of early voting for the 2020 general election, beginning Saturday, October 24, and extending through Sunday, November 1, with sites open for extended hours some evenings. Election Day is Tuesday, November 3.

In anticipation of another crush of mailed ballots, the New York City Board of Elections on August 4 approved the purchase of five state-of-the-art absentee-ballot counting machines -- one for each borough -- for roughly $1.5 million. The machines will help streamline absentee canvassing.

"That is something that should be watched,” Steiner said, “whether the absentee ballot handling is going to be improved, whether that is the only improvement to the handling of absentee ballots that they make.”

by Ethan Geringer-Sameth, reporter, Gotham Gazette

Read more by this writer.

As New York Looks for Smoother General Election, Long List of Voting Reform Bills Awaits Governor’s Signature or Legislative Action Mon, 10 Aug 2020 04:00:00 +0000
No, Trump Can’t Postpone the Election, But Congress Needs to Fund It participate electoral college

Electors to the Electoral College voting in Albany (photo: governor's office)

This guest column is part of Citizens Union Speakers, a regular series of op-eds written by members of the Citizens Union Foundation community in Gotham Gazette, CUF's flagship public education program. The opinions expressed in these Citizens Union Speakers columns are those of the authors alone, not Citizens Union Foundation, Gotham Gazette, or any other entity.

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In a tweet posted at 8:46 a.m. on July 30, President Trump floated the idea of postponing this fall’s general election. Once again making baseless charges against the integrity of mail-in voting, Trump tweeted – the three question marks are his – “Delay the Election until people can properly, securely and safely vote???” Well, Trump cannot postpone the election. There is no reason to postpone the election. But Congress must act to assure the legitimacy of this fall’s vote.

First, and most importantly, the President has no power to set, modify, or alter the date of the election. That date – which governs elections for the Senate and House of Representatives as well as for President – is set by Congress. Since 1875, that date, as we all know, is the Tuesday after the first Monday in November, which this year is November 3.  

With respect to the Presidency, Congress has further elaborated by statute the schedule for the casting and counting of the votes by the Electoral College, which, as we were reminded in 2000 and again in 2016, actually picks the President. By law, the electors are required to meet in their home states and cast their votes on the first Monday after the second Wednesday in December, which this year is December 14.

By law, Congress meets on January 6 to count the electoral votes, declare a winner, or resolve any disputes. And under the Constitution, the President’s term ends at noon on January 20, 2021. Any change to Election Day or the schedule for the casting and counting of electoral votes would require an act of Congress. Any change to the expiration of the presidential term would require a constitutional amendment. The first, which would require approval by the Democratic House of Representatives, is extremely unlikely. The second, which would require approval by two-thirds of both houses of Congress and three-quarters of the states, is virtually impossible.

The President has no national emergency power to stop or reschedule the election. As just noted, the election dates are determined by Congress and the actual operation of the election is conducted by the states and local governments, subject to congressional revision. The President has no power to change that.

Second, there is no reason to postpone the election, even if at this stage it were legally possible. COVID-19 is surely a hugely disruptive and tragic event, but we have stuck to the electoral schedule during even greater crises. Presidential and congressional elections were held as scheduled in 1864, at the height of the Civil War. Indeed, absentee voting was first pioneered during the Civil War to allow Union army soldiers to vote from the battle front.

Presidential and congressional elections were again held as scheduled in 1944, during the peak of fighting during World War II, with millions of soldiers around the world able to participate. And the congressional elections of 1918 were held as scheduled even as both the influenza pandemic and World War I raged.

Regularly scheduled elections are perhaps the most important feature of our democracy. Like past disasters, COVID-19 is a challenge to be addressed, not an excuse for cancelling democracy.

Third, however, it will require action by Congress for the COVID-19 election to succeed. Despite the president’s tweets, vote-by-mail has a proven track record of integrity and effectiveness. Even before COVID-19, roughly 20 percent of ballots cast in recent federal elections were submitted by mail, and in five states elections are conducted virtually entirely by mail. But these states took time to transition from polling-place voting to address some of the problems mail-in voting raises, including verifying signatures, getting ballots out and back on time, and tabulating the results.

The unprecedented surge in mail-in voting in place of traditional voting in primaries this spring and summer raised a lot of these problems in states around the country. Dealing with them will require getting and testing new equipment, training election workers, preparing the postal service, and educating voters. All this will require a major administrative effort by state and local election administrators, and it will also require money.

Congress is currently struggling over the latest COVID relief bill. The House bill – passed in May – offers states and local governments $3.6 billion in election assistance funds, which are essential for smoothing the transition to mail-in voting as well as for proving election administrators with the money necessary to make polling places safe and sanitary for the many millions of voters who will want to vote in person, whether at early voting election centers or at polling places on Election Day. The latest Senate Republican proposal has NO money for election assistance. 

It is certainly understandable why Congress should focus its concern on the unemployed, small business, and essential workers. But democracy is also essential, and surely a few billion of the trillion dollars or more than Congress will eventually appropriate must be allocated to protecting democracy. 

Congress’ failure to appropriate the funds needed to pay for the transition to mail voting and making polling places safe and sanitary would mark a greater threat to the legitimacy of the 2020 election than any of the president’s tweets.

Richard Briffault is the Joseph P. Chamberlain Professor of Legislation at Columbia Law School and Vice Chair of Citizens Union Foundation.

Have an op-ed idea or submission for Gotham Gazette? Email

This guest column is part of Citizens Union Speakers, a regular series of op-eds written by members of the Citizens Union Foundation community in Gotham Gazette, CUF's flagship public education program. The opinions expressed in these Citizens Union Speakers columns are those of the authors alone, not Citizens Union Foundation, Gotham Gazette, or any other entity.

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Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union. ]]>
No, Trump Can’t Postpone the Election, But Congress Needs to Fund It Mon, 03 Aug 2020 04:00:00 +0000
New York City Mandated an Absentee Ballot Tracking System; The Board of Elections Never Implemented It rosenthal absentee ballot mailbox

Voting absentee (photo: @HelenRosenthal)

A law passed by the New York City Council in 2016 could have helped prevent some of the many problems plaguing the absentee ballot process from the June 2020 primary elections. But that law was never implemented by the New York City Board of Elections, a quasi-state agency that routinely refuses to abide by local mandates.

The June primaries saw a record number of absentee ballots cast by voters, facilitated by an executive order from Governor Andrew Cuomo that mandated that local boards of elections across the state send out postage-paid absentee ballot applications to all eligible, registered voters. But the multi-step process was riddled with problems and the New York City Board of Elections was ill-equipped to handle the crush of hundreds of thousands of new absentee voters. The city BOE sent out more than 778,000 ballots and more than 403,000 of those were mailed back by voters and marked as received by the board.

Ahead of the primary, voters complained for weeks that they hadn’t either received an absentee ballot application or the ballot itself after mailing the application to the BOE. Some even received the ballot after the primary election was over, while untold others may have their attempts at voting invalidated for various reasons.

City Council Member Ben Kallos, a Manhattan Democrat, said these issues could have been avoided. He sponsored the 2016 law that required the city Board of Elections to create an online portal that would allow voters to track their absentee ballot application and their ballot, along with giving them access to their registration status, voting history, and other election-related resources. The city BOE never created the portal.

“The biggest impediment to free and fair elections and democracy in the City of New York is the Board of Elections, and it really shouldn’t be that way,” Kallos said in an interview. “They only had one job and all they had to do was send people their absentee ballots and they couldn't even get that right. And because of the Board of Elections, tens if not hundreds of thousands of voters were disenfranchised.”

The city BOE has already begun throwing out thousands of ballots for errors small, large, and at times out of the control of voters. For instance, ballots had to be postmarked by June 23 and received by June 30 to be counted. But, as Gothamist first reported, the United States Postal Service does not typically postmark envelopes that already have postage paid, and despite instructions to postmark voter mail, some yet-to-be-determined number of ballots were not postmarked, which meant that otherwise valid ballots were not going to be counted.

Those rejections have prompted a federal lawsuit against the state BOE and the governor by two Democratic candidates and more than a dozen voters, alleging voter disenfranchisement. “Depending on where the voter lived and what their local USPS office was doing or told, two voters could cast identical ballots, at exactly the same time, on the same day, and yet one ballot would be counted and one would not,” the lawsuit states.

There are also other ongoing issues around which absentee and affidavit ballots will be counted because of issues like stray marks on ballots or missing signatures. Meanwhile, those who vote absentee have no way of knowing the status of their ballot.

Already, the mismanagement of and other problems with absentee balloting has prompted the state Legislature to consider ten pieces of legislation ahead of the fall general election to improve the voting process, including a bill sponsored by State Senator Zellnor Myrie of Brooklyn that would provide for the type of tracking mechanism that Kallos’ law envisions.

Activists from the Let NY Vote coalition are rallying behind those bills. “The June primary highlighted many of the obvious inadequacies in New York State's absentee ballot counting procedures,” said Jennifer Wilson, deputy director of the League of Women Voters of New York State, in a public statement. “Voters throughout the state were unsure whether their ballot would arrive in time to be counted, or whether their ballot would be rejected without their knowledge. This package of bills will address issues surrounding absentee voting in New York State as well as assuring voters that they will be able to continue to vote via absentee ballot during the ongoing coronavirus pandemic.”

[Push Is On for 10 Bills to Strengthen Absentee Voting and More Ahead of Fall Election]

As it has done with Kallos’, the New York City Board of Elections regularly ignores laws passed by the City Council, on the grounds that it is only subject to mandates of the state Legislature. Though it is technically a state entity, it is funded by the city and its ten commissioners are appointed by the City Council. The Board has previously refused to implement other local laws, including one that required it to post signage when a polling site is moved. It also decided not to allow online voter registration after the state BOE’s Republican and Democratic commissioners provided a split opinion on the validity of electronic signatures.

But in the case of the absentee ballot tracking proposal, the BOE’s executive leadership seemed to agree with the intent of the bill. When Kallos held a hearing on the bill in March 2015, BOE Executive Director Mike Ryan testified to the relative ease of implementing an electronic tracking system, which is already used internally. “Well I think it would be a subset ultimately of the system that we already have in place...The question simply then becomes, we're gathering the information; the real question from a programming perspective is; how do we take the information that we're gathering and make it publicly available on a web and accessible?”, he said, according to a transcript of the hearing.

He even said that if the process was automated and did not require manual effort, that the BOE would likely not have any objections to it. “I would envision, if we were going to implement something like this, that the only way that it could work is if there was an automation to the process. You know, a barcoding, a QR coding that allows us to scan the envelopes when they come back in,” he said. “Given the amount of information and all of the tasks that we have to complete leading up to election day, having manual intervention without significant additions to capable staff that could do this, is not something that would be possible...But if it's all electronic we don't have an issue; if it's manual intervention we'd have significant issues trying to comply.”

BOE spokesperson Valerie Vazquez declined to comment for this story.

If the state Legislature fails to follow through on absentee ballot tracking and online voter registration, Kallos, who is running for Manhattan Borough President in next year’s city elections, said voters should reject them at the polls.

“As we head into the most important election in our lifetimes for the President of the United States, people will not be able to register online and they may not be able to request their absentee ballots online or even track and see whether or not their ballots are counted and all that just makes them lose faith in their elected officials,” he said. “And I hope that they will join me in voting out all the bums and going after all the corrupt party officials that are involved in a broken Board of Elections.”

by Samar Khurshid, senior reporter, Gotham Gazette

Read more by this writer.

New York City Mandated an Absentee Ballot Tracking System; The Board of Elections Never Implemented It Mon, 20 Jul 2020 04:00:00 +0000
We Should Never Have to Choose Between Life and Democracy in person voting pandemic

In-person voting during a pandemic (photo: Gotham Gazette)

We should never have to decide between public health and democracy. We must have both.

We hoped that voter suppression was a thing of the past, and yet it is still present not just in the South but in the South Bronx and across the country.

We are witnessing a public health and democratic crisis that must be addressed immediately—otherwise, lives will be taken as electoral gains are also stolen.  

In short, the coronavirus crisis has cast a light on the deteriorating health of American democracy, and it’s time we act urgently.

In the midst of a global pandemic, state and local governments have had to adjust the way voters participate in elections to minimize transmission of COVID-19 and keep people safe, including using early voting and mail-in ballots so that people have options to cast their vote.

However, the past few months have shown that our electoral system is still in dire need of repair. The fact that it is taking weeks to count ballots in the South Bronx, for example, does not bode well for upcoming elections—the most important of which is defeating Donald Trump in November. 

In Pennsylvania, tens of thousands of voters received their ballots in the mail after the election had passed. Baltimore residents had to wait more than a week longer to receive their ballots than residents of the other parts of Maryland. More than 1,000 voters in New Mexico were disenfranchised because their mail-in ballots arrived too late to be counted on Election Day.  

In Georgia, tens of thousands of voters had yet to receive their ballots by mail on the day before the primary election, and more than 10% of in-person polling places in the state had been closed, forcing many voters to wait for hours in line at those sites that remained open. 

Unfortunately, in New York’s June primary elections, we saw more of the same—delayed or missing ballots causing the disenfranchisement of people unable to leave their homes due to health concerns; polling places closed or moved without explanation; lifelong Democrats told to submit an affidavit ballot because their party status was somehow in question; voters forced to wait hours in line in the midst of a pandemic.

There were just under 800,000 absentee ballots sent out by the New York City Board of Elections and more than 400,000 absentee ballots returned by voters. However, we still have no clarity on the actual number of people who never received their ballots or received them late, nor the actual timetable of when the ballots were mailed out in the first place.

We also still don't know why the top voting Black polling place in my Assembly District (the 79th) was moved nor why several of our polling places were opened late nor why so many persons were only given presidential primary ballots nor why so many largely Black polling places have two-hour-plus lines due to insufficient equipment and scanners going down. Some may call these all innocent errors, but there's simply too much consistency to ignore, too much likely intentionality to overlook.

When the government needs to contact us to collect money, the mail system works seamlessly. However, from delayed stimulus checks earlier this year to now delayed ballots, we are not helping our fellow Americans to recover and exercise their right to participate in our democracy.

Simply put, it is unacceptable that untold numbers of Americans are being asked to literally risk their lives to participate in the electoral process because of the inadequacies of the vote-by-mail system and boards of elections. 

I am proposing the following set of remedies.

First, all poll workers must receive non-partisan training, be treated as skilled employees with approved certification, and have no connection to any candidate or campaign. Moreover, the leadership and staff at boards of elections should always be independently appointed.

Second, there must be a public schedule that explicitly sets forth when ballots should be received by voters in the mail, ensuring some degree of government accountability. In addition, there must be a tracking system to notify voters of ballot distribution and arrival, just as there would be for any package purchased online. 

Third, if someone is found to have participated in voter suppression, he or she must be immediately referred to the New York State Attorney General for investigation.

Fourth, we must ensure that devices at polling places are able to identify a voter who lives within that site's jurisdiction so that people are not unjustly turned away from their polling site or forced to submit an affidavit ballot.

Fifth, the public must be given transparency as to why a person is asked to vote by affidavit ballot or has had their ballot invalidated. My team has identified several hundred affidavit ballots that were initially deemed invalid, many for simply undemocratic reasons such as a person who is confirmed by the Board of Elections to be a Democrat had their ballot invalidated because they didn’t check a box  for why they were voting by affidavit. What if the person didn’t know why they were being forced to vote affidavit or the poll worker didn’t actually have a reason?

Sixth, there must be emergency allocations for local boards of elections and postal services to have sufficient capacity prior to the election. In the event that legal action is required in the 15th Congressional District -- or elsewhere -- to review the election results, that election should not be certified until the legal action is resolved. This should be the standard across the board.

Seventh, wherever possible, a public hearing and approval process must be established prior to moving a polling site.

It pains me to think that this undemocratic process has occurred over the course of many decades. Anyone who has contributed to the intentional disenfranchisement and suppression of voters should be ashamed, as your silence has led to the voices of New Yorkers not being heard.

If you voted by affidavit or absentee ballot, you should demand an immediate answer as to whether your ballot has been deemed valid and counted in this electoral contest. Tens of thousands of New Yorkers are thinking right now that their vote was counted, but unbeknownst to them, and for some undisclosed reason, their ballot was in fact voided. We should not have to sift through countless reams of paper to discover that New Yorkers—especially those in low-income, Black and brown neighborhoods—are being unfairly disenfranchised and suppressed.

The reforms outlined above are necessary because these issues are not theoretical. A recent study found that Wisconsin’s decision to hold an in-person election in April led to a substantial spike in coronavirus infections. In other words, these election-related issues are a matter of life and death. If we’re going to offer the early and mail-in voting that we should, it must work, and work well, to ensure that New Yorkers and all American voters have their right to vote protected and ensured.

As I continue to cry and mourn the loss of Civil Rights icon Rep. John Lewis, whom I had the honor to meet several times and bestowed upon me one of his final endorsements, my spirit reflects heavily on one of his many profound sayings: "If you see something that is not right, not fair, not just, you have a moral obligation to do something about it." As we enter the fourth week after our election with so many unresolved problems, I'm writing this because we have a moral obligation to end the voter disenfranchisement and suppression that occurs across New York State and this country.

Countless numbers of our ancestors marched, bled, and died for the inalienable right to vote.  We shouldn’t have to risk death to vote again.

Michael Blake is a member of the state Assembly and candidate for Congress in the Bronx. On Twitter @MrMikeBlake.

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We Should Never Have to Choose Between Life and Democracy Sat, 18 Jul 2020 04:00:00 +0000