The White House pointed on Tuesday to the chaos of June’s congressional primary elections in the New York City metropolitan area to raise doubts about the viability of mail-in ballots for the general election.
Due to the unprecedented number of absentee ballots cast, a number of contentious Democratic Party primary races are unresolved more than three weeks after in-person voting took place on June 23.
White House press secretary Kayleigh McEnany, who called the elections an “absolute catastrophe” at her Tuesday press conference, also pointed to the high percentage of absentee ballots disqualified on technical grounds as a sign that making mail-in voting available nationwide would be impractical.
“There are questions about mass mail-out voting,” McEnany concluded.
McEnany was attacking New York’s elections to discredit the idea of expanded mail-in voting, which President Donald Trump sees as a political threat. In June, Trump admitted that mail-in voting, which he has baselessly alleged enables fraud, could cost him the election by making it easier for Democrats to vote.
In a statement to HuffPost, Rich Azzopardi, a spokesperson for New York Gov. Andrew Cuomo (D), called McEnany’s remarks “absurd.”
Yet notwithstanding McEnany’s cynical motives, she is taking advantage of New Yorkers’ real concerns that people are unfairly being disenfranchised.
The technical reasons for disqualified ballots are a source of frustration for good government advocates who have long argued that voting by mail should be easier and less vulnerable to human or bureaucratic error. A particularly galling example is that through no fault of voters, some post offices failed to stamp ballots with an ink postmark attesting that the ballot had been mailed by Election Day.
Cuomo issued an executive order in late March allowing New York residents to cast absentee ballots by mail due to the COVID-19 pandemic. The state mailed every registered voter an absentee ballot request form that they could complete to request an absentee ballot. Then voters could mail in their absentee ballots using envelopes with pre-paid postage. One reason for the dearth of postmarks on those envelopes is that ordinarily, post offices do not postmark envelopes with prepaid postage. (The day before the election, Common Cause New York and a host of other government reform groups sent a letter to Cuomo expressing concern about the potential postmark problem and calling for him to allow envelopes that arrived by June 30 with missing or illegible postmarks to be presumed valid.)
Disqualified ballots played a glaring role in New York’s 12th Congressional District, which encompasses Manhattan’s East Side, as well as parts of northwest Brooklyn and Queens. Rep. Carolyn Maloney (D) and progressive challenger Suraj Patel are still locked in a neck-and-neck race that is likely to come down to hundreds of votes.
But local boards of elections in three New York City boroughs have disqualified about 13,000 ballots ― an estimated 19% of those cast in Manhattan and Queens, and 28% of those cast in Brooklyn. (For comparison, NPR found that absentee ballot rejection rates very rarely top 1% in other states.)
All of the candidates in New York’s 12th issued a statement on July 17 calling for Cuomo to direct local authorities to retroactively validate any ballots received by Election Day regardless of whether they had a postmark or not. The group of candidates, which also includes activists Lauren Ashcraft and Peter Harrison, are specifically asking Cuomo to update his executive order to retroactively validate ballots that are not postmarked but arrived at the Board of Elections by June 26.
“Put bluntly: A missing postmark, over which voters had no control, should not disenfranchise those voters,” the four candidates said.
Thus far, Cuomo has said that the issue is not primarily his responsibility. At a press conference on Tuesday, he said it was up to the legislature to pass a new law validating ballots that arrived by Election Day but did not contain a postmark.
“If they change the date, and I can understand the rationale for changing the date ... that would be fine,” he said.
Patel, who is an attorney, maintains that Cuomo has the legal authority to change the law. Requiring a postmark on a ballot that has already arrived on time amounts to an unnecessary doubling up, according to Patel ― a case lawyers and business people describe as a “belt and suspenders” redundancy.
Failing to take corrective action is “unjust ― especially at a time when Republicans are trying to suppress votes,” Patel said.
Patel, whose base is in the disproportionately disqualified precincts of the district’s young and liberal Brooklyn neighborhoods, is one of several plaintiffs in a federal lawsuit charging Cuomo and the New York State Board of Elections with committing an “election snafu” that disenfranchised voters.
Jerry Goldfeder, a leading New York City election attorney, argued against the governor or the legislature changing the rules for ballot qualifications after Election Day, regardless of their authority.
“It’s never a good idea to retroactively change a law that might very well have an impact on the outcome of an election,” he said.
Instead, Goldfeder expressed hope that the federal courts would provide relief for voters whose ballots were not postmarked despite being mailed on time.
“The real challenge is to rectify all these problems before November,” he added.