Two candidates and more than a dozen voters filed a lawsuit in federal court on Friday accusing Governor Andrew Cuomo and the New York State Board of Elections of creating an “election snafu” during the pandemic that stands to disenfranchise thousands of voters. 

The plaintiffs argue the problem stems from one of the executive orders signed by Cuomo to expand access to absentee ballots due to the Covid-19 public health emergency. It required Boards of Elections statewide to send voters a postage-paid absentee ballot envelope - a change from the previous system where voters applied their own postage.  

As Gothamist/WNYC previously reported, postage-paid envelopes are not typically postmarked by the United States Post Office. But under state election law, in order for a ballot to be counted, it must be postmarked by June 23rd or before, and received by the Board of Elections by June 30th.

In New York City, the local Board of Elections reports they distributed more than 778,000 absentee ballots, of which more than 408,000 were returned. Many voters complained about receiving their ballots late or in some cases not at all. 

Election officials have described the amount of absentee ballots in this contest as an “unprecedented volume.” With 470,000 people voting in person, just under 50 percent of the total ballots cast were absentee ballots. 

By comparison, for all the elections conducted in 2016 combined, including the presidential primary, federal primary, state and local primaries, and general election, there were less than 300,000 absentee ballots cast in those contests, making up less than 7 percent of the total vote.

In the complaint, plaintiffs argue that this deluge of absentee ballots in the primary were handled inconsistently in part because of the State Board of Elections’ reliance on the United States Postal Service and that those ballots will be counted, or not counted with, “lightning-like randomness.” 

“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 complaint states.

The plaintiffs argue that in Brooklyn alone, 4 percent of the absentee ballots returned there will be disqualified due to postmark issues, which means nearly 16,000 people will lose their vote. They are asking the court to ensure every ballot that was mailed is counted as long as it was received by the June 30th cutoff date at the Board of Elections, regardless of whether or not the United States Postal Service postmarked it in a timely fashion.

Ali Najmi, one of the lawyers filing the suit, represents eight different candidates who ran in the June primary, including four in Queens and four in Brooklyn. Before any absentee ballots were opened, Najmi filed orders to show cause on behalf of all of his clients, which gave him access to photocopies of ballot envelopes the New York City Board of Elections invalidated. He said he was concerned about possible postmark disqualifications.

As he was looking through the photocopies, the invalidated ballot envelope for Katherine Stabile jumped out at him. She wrote a frustrated message below her return address complaining that the ballot had just arrived on June 23rd. He tweeted a picture of the photocopy, shielding the voter’s name and address. But he reached out to her to find out what happened.

She is now a plaintiff in the federal suit. 

Stabile, 82, told Gothamist/WNYC, “I’m the type of person, I always vote. I think it’s the responsibility of every citizen to vote, even, you know the primaries.” 

A retired philosophy professor who spent 14 years teaching at Queensborough Community College, Stabile said normally she would have gone out to vote in person. “Because of the coronavirus and because I had a little health problem, when they sent me the application for an absentee ballot, I sent it in,” she said. It took more than three weeks for her actual ballot to arrive, which didn’t show up until her mail was delivered on June 23rd, Primary Day.

Still, Stabile, who recently had a stent procedure, filled out her ballot, wrote a note on the envelope, “I was extremely angry,” she said, and walked it two blocks to put in a post box that same day. Despite her best efforts, Stabile’s ballot shows a postmark of June 25th and timestamp indicating it was received by the New York City Board of Elections in Queens on June 27th.

Najmi said after reviewing 1,400 invalidated ballots in the 24th Assembly district alone, more than half of them were disqualified for postmark issues that, like Stabile, were beyond the voters’ control.

Even before the lawsuit was filed, State Board of Elections officials were aware of pending postmark problems. The complaint cites comments made by State Board of Elections Commissioner and Democratic Co-chair Douglas Kellner to Gothamist/WNYC, where he described a call with other elections’ commissioners two days after the primary. Some said they had already received ballots with missing postmarks. 

The complaint also cites Kellner’s comment about this type of vote-by-mail system, where, “the Boards of Elections are now in partnership with the U.S. Postal Service for conducting the election.”

Similarly, Brooklyn Democratic Leader and Assemblymember Rodneyse Bichotte also told Gothamist/WNYC last week that a “few thousand” absentee ballots in Brooklyn were disqualified for postmark issues. She later appeared in NY1’s Inside City Hall where she specified that approximately 4 percent, or more than 16,000 ballots could be disqualified for postmark issues there.

Another plaintiff in the case is Emily Gallagher, who is running for the 50th Assembly seat. The district covers portions of Williamsburg, Greenpoint, and Fort Greene in Brooklyn. Her opponent is incumbent Joseph Lentol, who has been in office for more than four decades. As of primary night, Gallagher trailed Lentol by 1,763 votes, out of the 11,526 votes cast in person. But more than 17,000 absentee ballots were distributed in that race, and the city Board reports that 9,689 were returned. 

No absentee ballots have been counted in that race yet. But Gallagher was concerned enough to bring together many of the plaintiffs in this suit.

“It is a travesty that our elected officials remain silent as thousands of voters—through no fault of their own—are disenfranchised,” Gallagher said. “We’ve always known about the inherent incumbent protection program here in New York, and the fact that it now includes such blatant voter suppression is a national disgrace.”

The other candidate in this case is Suraj Patel who is running against incumbent Carolyn Maloney in the 12th Congressional district primary. That district comprises portions of Manhattan’s east side, as well as portions of Queens and Brooklyn. As of primary day, Maloney was in the lead by just over 600 votes. But 60 percent of the total vote in that race is from absentee ballots, and they just began to count absentee ballots from those districts on Monday.

The other attorney representing the plaintiffs is Remy Green, who was part of the team that successfully argued for the reinstatement of the cancelled presidential primary earlier this year.

“While the Board may claim they cannot deviate from New York law, their failure to account for the Constitution – which, of course, trumps state law – essentially requires any consideration of the Constitution to come from litigation,” said Green. They added, “That result is not only an absurd means of governance but a poor use of scarce resources – particularly during a pandemic.”

Asked about the lawsuit at a Covid19 briefing Friday afternoon, Cuomo deflected the issue saying, "The date for the ballots to be eligible is in the law." Since March, the governor has issues dozens of executive orders to change laws due to the public health emergency. Still he added, "That is going to have to be resolved either by a court or by the Legislature passing a new law."

The New York Board of Elections has not responded to requests for comment yet.

This story has been updated to reflect comment from Governor Cuomo.