Class Action Alleges Thousands of NY Absentee Ballots Wrongfully Discarded Due to ‘Election Law Snafu’

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The New York State Board of Elections, Governor Andrew Cuomo and several officials face a proposed class action that alleges an “election law snafu” stemming from a pandemic-related executive order stands to disenfranchise many of the state’s voters. 

The 22-page lawsuit, filed July 17, says thousands of New York voters will “simply have their votes discarded” because they were unaware that absentee ballots, under existing election law, must be stamped by the U.S. Postal Service (USPS), a requirement that conflicted with May 2020’s Executive Order 202.26, and therefore should not be dropped in a corner mailbox. 

In all, Governor Cuomo issued four executive orders amid the pandemic pertaining to absentee voting for upcoming elections, Executive Orders 202.15, 202.23, 202.26 and 202.28. Most relevant to the plaintiff’s allegations, Executive Order 202.26 modified existing New York election law to the extent that any absentee ballot sent to a voter for a primary or special election would come with a postage-paid return envelope, the lawsuit says.

Prior to Executive Order 202.26, however, absentee ballots sent to voters did not indicate they could be sent without postage, and the state’s Election Board generally instructed voters to affix postage to the ballot-containing envelopes, the suit relays. Per the case, Executive Order 202.26 “created a situation that never existed before” given the USPS’s national, general policy was to not stamp absentee ballots with a postmark given their containing envelopes displayed no stamp to be canceled.

The underlying issue, according to the plaintiffs, is that New York election law requires absentee ballots to “show[] a cancellation mark of the United States postal service or a foreign country’s postal service, or showing a dated endorsement of receipt by another agency of the United States government, with a date which is ascertained to be not later than the day of the election.” The majority of the plaintiffs, who the suit identifies as registered Democrats, submitted via mailbox to the U.S. Postal Service absentee ballots in envelopes that were not timely postmarked and will therefore be invalidated by New York’s Board of Elections, the case says.

According to the complaint, the USPS, “for decades,” has not stamped ballots with postmarks when the postage is prepaid. Upon information and belief, the suit says, though New York’s Election Board coordinated the new rules with post offices in the state, it failed to share the updates with many post offices across the country.

“Thus, upon information and belief, there were out-of-state New York voters who were not even near a post office the Board attempted to get to change the longstanding practice of not postmarking pre-paid envelopes,” the case reads. 

Further, trainings held by the USPS on how to handle New York absentee ballots were “rushed, incomplete, and failed to reach every location even within” the state, such that many facilities handled every absentee ballot they received without applying a postmark, the lawsuit claims. 

Ultimately, the complaint claims there exist “large groups” of voters who mailed in absentee ballots on or before June 23 that the USPS did not postmark correctly, or at all, and will consequently not be counted. Some who voted in the state on June 22 or earlier will also not have their ballots counted, the suit adds, due to untimely postmarks.

The plaintiffs ask the court for emergency relief with regard to the present vote count going on for New York’s June 23, 2020 election, whose result is set to be certified in early August, and similar relief with regard to any other election conducted under Executive Order 202.26. 

“In both cases, however, the relief itself is straightforward: count every ballot received before the already-existing cut-off (e.g., June 30 for the June 23 election), regardless of whether the USPS happens to have disregarded its long-standing practice in order to specially stamp the ballot,” the complaint reads.

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