New York state Senator Zellnor Myrie cast his ballot in person during the early vote period in his state’s June primary. He’d applied for an absentee ballot —which didn’t arrive in his mailbox until a day before the election. So rather than hold out for it, he decided to go in to ensure he would get the chance to vote, figuring he wasn’t at too much additional risk of contracting the coronavirus.
But for the thousands of other New Yorkers who, like Myrie, reportedly didn’t receive their absentee ballots in a timely fashion or at all, weighing their right to vote against the public and personal health risks of going to a polling station may not have been so easy. It’s a choice voting access advocates say no one should have to make.
New York’s June 23 primary did not go smoothly. The issues election officials and voters faced were wide ranging, but hinged mostly on a massive number of absentee ballots flooding a system that was simply unequipped to process them. In the 2016 primary, New York state had 157,885 requests for absentee ballots; this year, the state, which at one point was the epicenter of the deadly battle against COVID-19, received more than 1.7 million requests.
The sunniest interpretations of the primary have focused on participation being high because voting by mail was made more accessible. But state officials are anxious about the host of problems that came up, and what they could mean come November. An unclear number of voters were disenfranchised due to technicalities, like missing signatures, or the government’s inability to expeditiously get ballots in the hands of voters.
One New York state Board of Elections official, Douglas Kellner, estimates tens of thousands of eligible voters were disenfranchised, and notes the bulk of the state’s problems occurred in New York City and Westchester County. Processing the huge number of absentee ballots has caused a long delay in election results. More than a month later, some results, including those of high-profile congressional races, are still not decided.
“If we do not fix the logistical problems, it is going to be a recipe for confusion and chaos leading up to the most consequential election of our lifetimes,” says Myrie. “It is incumbent on the state to make this a top priority.”
Now New York officials are scrambling to avoid a similar situation in November, when the pandemic is still expected to affect the general election. Kellner, who is the Democratic co-chair and commissioner of the New York State BOE, says he’s “very frustrated in dealing with the senior staff at the [New York City] board of elections to get them to recognize what they need to do to get this job done. And they are very frustrated because what we’re asking them to do is very hard.”
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In July, the state legislature passed a slate of reforms aimed at avoiding some of the problems encountered in the primary, which are now pending the governor’s signature. The state BOE, which oversees the local boards, is expected to testify before state lawmakers on August 11 about what went wrong. And advocates are saying more needs to be done ahead of the general election, including putting in place an aggressive voter education campaign and allocating additional funds so things run more smoothly on November 3.
“I think the June primary occurred under extraordinary circumstances, but the reality is that we collectively failed as a state to sufficiently plan ahead and also to safeguard every single voter’s safe access to the polls,” says New York state Senator Alessandra Biaggi.
New York is reliably blue and unlikely to have much to do with the larger outcome in the presidential race. But it is an alarming case study of a state that had a lot go wrong in the primary and has a lot of to do to fill a gap in preparedness before November. Several states that held primaries after the pandemic hit saw those races as a test run ahead of the high-stakes general election. In November, many more voters are expected to turn out, whether by mail or in-person. Failure to anticipate problems and adjust could result in more disenfranchised voters.
There’s also a concern that any lack of preparedness in handling a larger volume of mail-in ballots could feed into President Donald Trump’s false narrative that mail ballots are insecure. (Past races and research show that vote-by-mail is reliable.) Trump has already painted a target on New York’s back: On July 29, he tweeted about the “disastrous” primary, suggesting incorrectly that it was a rigged election and planting another early seed of doubt about the results of the presidential election.
“Hyperbolic rhetoric about the integrity of New York City’s elections plays into the hands of Donald Trump, who would love nothing more than to delegitimize vote by mail,” says New York City council member Ritchie Torres, a young Democratic star who ran in the June primary. “There’s a difference between administering an election imperfectly and rigging an election.”
Torres ran for a seat in one of New York’s two congressional primaries that have yet to be called. He’s the expected winner in his Bronx congressional district, and is poised to be the first openly gay, Afro-Latino man in Congress. He admits the delay has been frustrating. Though he initially told TIME that he would wait to declare victory until the results were finalized, he has since gone ahead after broadening his lead.
The other outstanding House race is between U.S. Rep. Carolyn Maloney and Suraj Patel in the 12th congressional district, which the Washington Post reported had “well over” 50% of the vote cast by absentee ballots. Patel, who is trailing Maloney, refuses to concede. Instead, he is now among several plaintiffs suing the New York State BOE and other officials, claiming an executive order from Gov. Andrew Cuomo created confusion among voters and at the U.S. Postal Service.
The order was intended to expand access to absentee voting, in part by providing voters with pre-paid, business class envelopes for people to return their ballots in. But the lawsuit charges that in the process of switching away from voters paying for the envelope, thousands of voters’ ballots were invalidated because postal workers didn’t postmark the envelopes, as absentee ballots are required to be. Kellner, who is named in the suit, says the postmark issue brought up by the lawsuit did not occur on the scale that is suggested in the complaint.
“People’s fundamental right to vote cannot just be discarded willy nilly because of a snafu,” says Ali Najmi, an election attorney representing the plaintiffs. “People’s votes were not counted because of issues related to postmarks and delivery, which are not in control of the voters.” The case was heard this week, and the judge is set to rule on it shortly.
In response to the problems that surfaced during the primary and in preparation for November, the state legislature passed several election reform bills last week. Among their provisions were ensuring that once again coronavirus would be a valid reason for a voter to request an absentee ballot this fall, allowing voters to request absentee ballots more than 30 days in advance of the election, and giving voters notification to “cure” technical errors such as unsigned envelopes.
The slate of reforms have been passed by both the state Senate and Assembly, and are now awaiting the Governor’s signature. “We are reviewing the bills – and as the Governor has said we are working with stakeholders, including the Legislature and Board of Elections, to make sure everything runs smoothly in November and if necessary we will take additional actions,” said Caitlin Girouard, Cuomo’s press secretary, in a statement to TIME.
It’s not clear, however, if the measures passed by the legislature will be enough. Though several elected officials expressed interest in passing legislation that would allow for ballot counting to begin earlier when asked about it, there appears to be no movement underway to make that a reality. And though many want additional resources to be allocated to running the election, it’s unclear whether that will happen.
Who is to blame for the way the primary played out depends on who you ask: It was Cuomo! The U.S. Postal Service! The State Board of Elections! The local Board of Elections! Trump! “If the President wanted to be helpful he could be helpful with the post office, right?” Cuomo said on a recent press call. “Because that was the single largest cause of delay. And I understand their situation also, but if you want to start pointing fingers that’s where you’d have to point fingers first.”
While a lot of the blame was placed on the BOE, nearly everyone also sympathized with their impossible task of streamlining a cumbersome process on an impossible timeline while strapped for resources. Asked what additional changes he would like to see made before November, Kellner answers quickly, “Nothing.”
“There’s no more time to make these changes,” says Kellner, laughing. “We’ve now got to work with what we have. Any tinkering this close to the election may cause more problems than it solves.”
—With reporting by Madeleine Carlisle
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