As the COVID-19 pandemic rocked the nation and the world in March of 2020, former Governor Andrew Cuomo ordered a major lockdown of business activity in New York State, the nation’s epicenter at the time of the frightening and deadly disease. The upheaval also caused fear of disruption for the nation’s elections, with many states’ Democratic Presidential primaries still unfolding and the impact on the November Presidential election itself potentially enormous. New York’s Democratic Presidential primary was only a few weeks away in April 2020. The former Governor decided to postpone the Presidential primary to avoid a crush of voters at polling places where they would face the deadly disease, and consolidate it with the regular June 2020 Congressional, State, and local primaries, both Democratic and Republican https://www.nytimes.com/2020/03/28/us/politics/ny-primary-voting-coronavirus.html .

The most obvious next step related to the June primary election to avoid the spread of the coronavirus was to maximize voting by mail, but New York’s mail ballot laws were antiquated. New York’s State Constitution did not allow general voting by mail, unlike many other states. In New York, one could only vote by mail for “ cause “, which  had limited the practice to a small slice of the electorate who were permanent absentee voters like the elderly and the disabled, or persons temporarily unable to vote who needed to submit an application to the Board of Elections which, if approved, would get them a mail ballot. I had a long interest in improving voter participation by expanding vote by mail. During my career in the State Assembly, I had sponsored a Constitutional amendment to allow general voting by mail, but only finally got a bill involving first passage in the State Assembly in 2016, the year I retired. It would take several more years for successively elected Houses of the Legislature to both pass a bill before that Amendment could get to the voters, only to have it defeated in November 2021.

Two steps were taken around the time of the postponement of the April Presidential primary to June  to expand mail voting. First, under the emergency authority granted the Governor by the Legislature for the pandemic, the former Governor added the danger of infection from COVID-19 to the list of reasons to allow for the application for a temporary mail ballot. Then it was decided to undertake the expense of sending an application for a mail ballot to the State’s electorate for the June primary, meaning millions of applications. New York State had also, for the first time in 2019, allowed early voting in elections. Early voting was intended to improve participation in the election, but for 2020 it also served to decrease crowding at the polls to avoid the spread of COVID.

A major issue related to the large-scale voting by mail for the June 2020 primary went unaddressed; New York law did not allow the mail ballots to be counted until after the polls had closed. If the volume of mail ballots was large, complete results would be unavailable for weeks and the results of close elections would be delayed. That, of course, is what happened. But the problems did not involve just counting. Although New York’s decision to expand mail voting successfully allowed hundreds of thousands of residents to vote without physically going to their polling places, massive numbers of voters’ mail ballots were disqualified https://jimbrennanscommentaries.com/2020/08/07/new-york-state-must-make-serious-and-immediate-fixes-for-mail-ballot-problems/ .

Although over 400,000 New York City Democrats sent in mail ballots, 84,000 of the ballots were disqualified, about 21%. After all the disqualified ballots, mail ballots were still 318,000, or about 40%, of the 811,000 ballots cast in the Presidential primary https://bit.ly/3JXk5CG .

Although Joe Biden had wrapped up the Democratic Presidential nomination by the time of the New York primary, many other elections were close and it was more than a month after the election before the Board of Elections could finish tallying the hundreds of thousands of mail ballots and candidates, constituencies, and the public could find out who won. A number of my former Assembly colleagues held leads from in-person Election night tallies, only to lose when all the mail ballots were counted, with those ballots nearly fifty percent of the final ballots cast https://jimbrennanscommentaries.com/2020/07/19/canvass-of-mail-ballots-for-several-closely-contested-assembly-primaries-begins-monday-july-20/ . They included Walter Mosley from Fort Greene, Brooklyn, Joe Lentol from Greenpoint, and Felix Ortiz from Sunset Park.

 Both the State Legislature and the Board of Elections undertook fixes in the summer of 2020 to prepare for an even larger mail ballot volume in November and to avoid so many voters losing their votes from disqualification. The design for the mail ballots and envelopes was simplified, online applications were enhanced and tracking systems created, the time for applying was lengthened, cures for defects in the ballots were authorized, and voters were supplied information they could drop off their mail ballots at drop boxes and polling places, including early voting polling places. The actual counting of the mail ballots, however, would still be done after the election.

The mail ballot volume in the Presidential election in New York State and New York City was immense. There were 662,000 votes by mail in New York City out of more than 3 million cast, 23% of the total https://bit.ly/3ptI8zM .  In New York State there were 1.2 million votes by mail and 2.5 million early votes out of the 8.7 million cast. With New York law still prohibiting opening the mail ballots before the close of the polls, it took a month to finish opening, processing, and tallying the mail ballots in the City and State.

Congressmember Tom Suozzi and State Senator Jim Gaughran from Long Island were both behind in the in-person vote on Election night but pulled ahead after the mail ballots were counted https://www.liherald.com/glencove/stories/suozzi-gaughran-come-from-behind-to-win-re-election,128864 . A former Democratic Assembly colleague, Anthony Brindisi, had defeated hard-right Republican Claudia Tenney ( also a former Assembly colleague) in 2018, but in 2020 he was behind 28,000 votes on election night, but there were 60,000 uncounted mail ballots https://www.washingtonexaminer.com/news/nail-biter-new-york-congressional-contest-may-end-up-in-the-house-pelosi-says . He conceded on Feb. 8,2021 after losing by 109 votes https://bit.ly/3c8cHb6

Former Congressmember Max Rose was down by 37,000 votes on Election Night in 2020 to another ex-Assembly colleague, Nicole Malliotakis, with 50,000 mail ballots to be counted. He lost by 18,000 and conceded eight days after the election.

                    MAIL BALLOTS AND 2021 ELECTIONS

New York City introduced rank choice voting into its June 2021 primaries, both Democratic and Republican, but not its general election. Concerns about the pandemic and voting in the primaries remained substantial, although the COVID-19 vaccines were making progress in inoculating the public. The New York City primaries occurred on June 22nd, 2021, and there were 798,000 in person votes reported as of Election night. By June 24th, the Board was reporting 111,000 mail ballots not yet counted. With the completion of the mail ballot counting by July 6th, two weeks after the election, the Board was in a position to run its ranked choice algorithm, and Eric Adams defeated Katherine Garcia in the eighth round. Mail ballots were 12% of the total, a drop from the 40% of the vote in June 2020 during the height of COVID.

In the City’s general election, Eric Adams, as the Democratic nominee, handily defeated Republican nominee Curtis Sliwa, and mail ballots had dropped to 8% of the vote. Mail ballots remained a major factor in several close City Council elections, including Bay Ridge, Brooklyn, where Democratic Councilmember Justin Brannan was behind with the in person vote on Election night and won only after over 1600 mail ballots had been counted, and in Queens, where former State Senator and Councilmember Tony Avella was defeated after the mail ballot count was insufficient to allow him to overtake his Republican opponent, Vickie Palladino https://bit.ly/3QFuPZ7 .                                           


In 2021  State Senator Michael Gianaris and my successor in the Assembly, Robert Carroll, passed legislation to end the mail ballot counting delays. The bill, S.1027-A, and A. 7931, directed Boards of Election across the State to open mail ballots within four days of receipt to review and determine their validity. Valid ballots would be processed and scanned by the end of early voting, and permitted to be opened and counted as of 8pm on Election night. The bills had passed the Legislature before the end of the June session but were not delivered to the Governor and signed in to law until the end of 2021 https://bit.ly/3Cq0bOW . The new law took effect in 2022.


Election night results posted by the New York City Board of Elections showed 446,000 votes with more than 97% of the scanners from the voting machines in the report

The Board of Elections reported on its election night website that all mail ballots received by the Friday before the election, or June 24th, were reflected in the results. Information sent to me by the Board of Elections recently showed that about 21,000 of the 33,000 mail ballots ultimately received for the Democratic primary had been received by that date, meaning about two-thirds of the mail ballots were in the Election Night Results.

About 480,000 ballots were cast in the Democratic gubernatorial primary, according to the New York City Board of Elections certified results https://bit.ly/3pAr2QF . The mail ballot total had dropped to less than seven percent of the total vote. We may never see a volume of mail ballots comparable to the scale that took place during the COVID pandemic. A constitutional amendment to eliminate “ cause “ as the necessity for a mail ballot was defeated at the polls in November 2021 https://jimbrennanscommentaries.com/2021/11/19/democrats-defeat-themselves-on-expansion-of-vote-by-mail-a-pro-democracy-measure/ .

As a result, the kind of mail ballot expansion like the system in California, where by law every voter now gets a ballot in the mail and a majority of votes cast are now done by mail, will not be taking place in New York anytime soon. The gubernatorial primary did not result in a massive volume of mail ballots, let alone a large turnout at all, so the Board of Elections was not overly challenged to include most of the mail ballots in the count. In very close elections, even the counting of the mail ballots on election night won’t end all delays, but the general public will in most cases have a clearer idea of who won on election night now.

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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