New York State Must Make Serious and Immediate Fixes for Mail Ballot Problems

New York State’s pandemic-induced mass mail-in balloting for the Presidential and other primary elections this past June 23rd received national attention as the poster child for what can go wrong with mail ballots. There’s no time now to point fingers or spend time denouncing Donald Trump. The General Election is less than thirteen weeks away and the State’s elected leadership and Election Boards need to take immediate steps to make major fixes for another huge round of mail ballots despite all the problems that just happened.

Allow Absentee Ballots to be Received Earlier

In late July, the State Legislature passed a bill allowing absentee ballot applications to be received earlier than 30 days before the election; the existing law deadline was 30 days. Governor Cuomo needs to sign this bill right away if he hasn’t already. He needs to issue another Emergency COVID-19 Order directing the Election Boards to mail absentee ballot applications to the voters as soon as possible, with a goal of getting them into the hands of the voters by late September. Every extra day the voters can receive and return them and have their ballots mailed to them can avoid delays later. New York City’s online portal for seeking the applications should get wide publicity.  As soon as the bill becomes law there would be nothing wrong with the voters sending in their application requests immediately..

Figure Out What Went Wrong

The public in New York still needs as much information as possible as to what went wrong. The New York City Board of Elections reported 84,000 of the 403,000 ballots mailed in were disqualified, a shocking 21%. Figures for the rest of the State are not provided right now by the State Board of Elections. The New York State Legislature is conducting a hearing on August 11 on mail ballot problems; the Election Boards and the Post Office have a responsibility to report on why so many ballots were invalidated and the issues involving the scale up of voting by mail.

A Federal judge ruled on August 3rd that ballots received the day after the June 23rd primary must be counted. That ruling is in line with a change the New York Legislature just made which said ballots without postmarks that arrive the day after the election are presumptively valid.  Unfortunately, the State is appealing this ruling. Far better would be for the Governor to sign this bill.

What else must New York do now?

Let New Yorkers Know that Other Methods of Returning Ballots Exist, in Addition to Mail

NY must provide widespread publicity about using methods other than the mail to get the ballots to the Election Boards, and to mail in one’s ballot as soon as possible. Don’t wait.

Douglas Kellner, the Co-Chair of the State Board of Elections, sent a memo ( Kellner Memo ) to the Commissioners of the New York City Board of Elections urging publicity for a little-used part of existing law. Few voters are aware they can return their mail ballot envelopes to their local polling places on Election Day. That includes their Early Voting stations, which are underutilized, he said. State and local government ought to advertise this fact on television, and political parties, good government groups, candidates, and ordinary citizens should inform voters of this option. The Election Boards need to prepare their workers to receive the mail ballot envelopes in a manner that avoids interference with people voting in person, as well as security protocols for the ballots themselves.

Early Voting takes on greater importance this year. Fifty percent or more of the voters will still show up to vote in person. Maximizing the number of Early Voting Stations will seriously reduce density at Election Day Polling places and protect  public health. Additionally, they could serve as an important outlet to receive mail ballot envelopes. This has the double benefit of reducing the volume of mail ballots and receiving them before Election Day, so Boards can begin processing them.

States with advanced absentee/mail ballot systems have also developed “drop boxes” to receive ballots. While there isn’t time to install thousands of such street-level secure boxes, there are ready-in-place public locations available in schools and libraries. There may be COVID-related limits on school and library openings, but to the extent they are available, they could be used to receive the ballots. Only a few Board of Election personnel are needed at a school or library; libraries also have secure book return drops. Local school districts and library systems should collaborate with the Election Boards to implement drop off systems.

Start Processing Ballots When They Are Received; This Will Help with “Curing” Ballots with Defects

New York needs a way to “cure” ballot defects so that all legitimate ballots are counted. The Assembly and Senate passed bills to allow Boards of Elections to contact voters whose ballots have defects, like a lack of a signature on the outside ballot envelope, or an exact ballot signature match. Ballots with defects are identified and the voter contacted, by mail, email, phone, text, etc., and permitted to provide confirmation they were indeed the voter, or “cure” the defect in some other way. This “cure” process is an important reform, but if it occurs after Election Day, it could be another source of delay.

State Board Chair Kellner recommended that New York’s statute that provides Absentee Ballot counting not start until Election Day be changed. He said that once the absentee ballot is voted, it should be logged into the electronic poll book system. If the voter then voted in person on Election Day, they would have to vote by affidavit ballot. The delay involving checking whether absentee ballot voters subsequently voted on Election Day could be substantially cut down.

Processing the absentee ballots by logging them in and recording them in the poll books cuts down on the time needed to count them, and opening them in the weeks before Election Day provides time to contact voters whose ballots have defects. Getting defects on the way to being cured weeks before Election Day should vastly reduce the number of invalid ballots.

Recruit More Staff

Thousands of our Election workers are ordinary citizens, many of whom are elderly and fearful of contracting COVID-19, and the Boards have been having trouble getting them to come in, contributing to the counting delays. State and local governments need to provide paid leave for workers who wish to assist their local boards of election receive, process, and count ballots. One possibility would be to designate a cohort of several thousand workers who would get ten days of leave, including what training they might need. College students should be recruited. The governing rules that require bipartisan teams to be present at all critical processes must still apply. The Boards need resources to hire more people.

Act Now!

Despite the pandemic, polls indicate a majority of the American public still prefers to vote in person. On June 23, 50% or more of New York voters showed up at their polling places. New York should not only keep polling places open but add more early polling locations, to avoid crowds and get mail ballots that have been voted in earlier.

There isn’t much time to provide meaningful fixes. That is why Governor Cuomo, the Legislature, and the Boards of Elections need to act fast.



Jim Brennan was a member of the New York State Assembly for 32 years and retired at the end of 2016. He chaired four committees, including the Assembly Committee on Corporations, Authorities, and Commissions for six years, the Committee on Cities for five years, and the Committee on Mental Health and Developmental Disabilities for six years. There are 96 Brennan laws on the books of the State of New York and Jim won three national awards for his legislative work during his career.

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