Thousands of absentee ballots in Brooklyn and across the city are likely to be invalidated by the city’s Board of Elections, after many were not marked with a cancellation notice, or postmark, at post offices in the city.
The number of voters whose votes will not be counted is unclear at the moment. Board spokesperson Valerie Vazquez-Diaz told Bklyner that the agency does not release updated totals throughout the absentee ballot counting process, and that the number of invalidated ballots will only be disclosed when counting is concluded and the Board officially reports vote totals.
Vazquez-Diaz did say, however, that the Board is invalidating non-postmarked ballots in order to comply with state election law; she says that if a directive from the state Board of Elections or from the Governor says to do otherwise, the Board will do so.
Ballots lacking a postmark received before June 23 will be counted, those received after or dated after June 23 will not, she said.
The BOE, as of July 7, reports having distributed 208,473 absentee ballots to Brooklyn Democratic voters, while receiving back 112,863. 2,031 ballots were sent out to Brooklyn Republican voters and 841 have been received back, while 5 were sent out to registered members of the Serve America Movement, with 1 having been returned.
Election day results, reflecting in-person votes, showed several close races that will have to be decided by absentees, of which there are many more than in previous years. The race in the 12th Congressional District, which includes parts of Greenpoint and Williamsburg as well as parts of Manhattan and Queens, is neck and neck, with incumbent Rep Carolyn Maloney sitting at 41.56% to challenger Suraj Patel’s 39.93%. In Sunset Park and Red Hook’s 51st Assembly District, incumbent Felix Ortiz sits at 38.6% against challenger Marcela Mitaynes’ 31.11%, with two others in tow; in Central Brooklyn’s 57th Assembly district, incumbent Walter Mosley has 51.91% to challenger Phara Souffrant Forrest’s 47.83%.
Other races, such as State Senate District 25 and Assembly Districts 50 and 56, aren’t quite as close, but the glut of absentee ballots could significantly alter the chemistry of the results.
The Board began counting absentee ballots in Brooklyn on Wednesday, more than two weeks after primary day. It is not clear when the count will be completed.
Typically, mail is postmarked by the United States Postal Service in order to “cancel” the postage on it, so that the mail recipient cannot peel off the stamp and use it again on a different piece of mail; part of the postmarking is deliberately designed to deface the stamp.
Absentee ballot returns typically require a stamp, but this year, they were mailed first-class, which doesn’t require a stamp and thus typically is not postmarked. But state election law, both pre-existing and recently implemented, requires absentee ballots to be postmarked by the day of the election.
The possible result could have been unclear instructions in post offices on applying postmarks to mail that typically doesn’t need one, though the USPS says it instructed all employees on postmarking protocols.
“The Postal Service employs a robust and proven process to ensure proper handling of all Election Mail, including ballots. This includes close coordination and partnerships with election officials at the local and state levels,” said Xavier Hernandez, a spokesperson for the USPS, in a statement. “Leading up to the June 23rd election, the Postal Service instructed employees in New York State about the Postal Service’s postmarking processes and procedures. All delivery units in New York, reviewed the standard operating procedures for postmarking. We are aware that some ballots may not have been postmarked and are communicating with the Boards of Election involved to investigate possible solutions for this election.”
Assemblymember and Brooklyn Democratic Party Chair Rodneyse Bichotte has called on the governor to allow all absentee ballots to be counted, regardless of if they were postmarked. She said that legal experts told her there is “no way to determine which ballots met the statutory postmark deadline date.” The State Board considers that date to be June 24, though the City Board is nonetheless junking ballots not postmarked by the 23rd.
“While my preference is for all received absentee ballots to be counted, I yield to the legal opinion that the 24th will be the cut-off date,” Bichotte said in a statement. “If the Executive can fix this, it would be the best outcome and Brooklynites would not lose the right to have their votes counted.”
The governor has not committed either way on the matter. A spokesperson for the governor’s office did not respond to a request for comment from Bklyner.
Sarah Steiner, an election lawyer working with several candidates this cycle [Editor’s note: these include former Brooklyn State Senate candidate Jason Salmon, as well as Congressional candidates Alexandria Ocasio-Cortez and Mike Blake, and Assembly candidates Yuh-Line Niou and Khaleel Anderson in other boroughs], says that the BOE is needlessly disenfranchising voters with “foolish adherence to a rule that isn’t intended to have this effect.”
“It’s a mass disenfranchisement of voters who did everything right but somehow their envelope didn’t get postmarked through no fault of their own,” Steiner told Bklyner, “and because of that their vote gets discarded.”