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.”