As part of the effort to mitigate the exploding pandemic in New York, Gov. Andrew Cuomo pushed voters toward casting their ballots by mail, which New Yorkers did in record numbers. But while hundreds of thousands of ballots were cast, there has been significantly less energy invested in counting those votes. The election was held on June 23, but more than three weeks later the state is nowhere near a final tally and is disenfranchising an extraordinary number of voters along the way.

The fate of several critical elections hangs in the balance. Board of Election documents obtained by The Intercept show that in New York’s 12th Congressional District, which covers Manhattan, Queens, and Brooklyn, 20 percent of mail-in ballots will be thrown out for a variety of reasons. The documents represent a “preliminary staff review” of ballots, and official decisions are ongoing.

A 1-in-5 disenfranchisement rate is far too high for a developed democracy, but the rate was worse in the Brooklyn part of the district, where the rejection rate in the staff review was a staggering 28 percent, according to an analysis of the documents. Across the city, nearly 400,000 absentee ballots were cast, meaning Cuomo’s handling of the election could throw out some 100,000 votes. That’s roughly the number California disqualified, a number considered scandalously high though it represented just 1.5 percent of mail ballots.

Good government groups have called on Cuomo to step in and treat the vote-by-mail he ordered as more than just a public relations victory he quickly put behind himself. But Cuomo has so far declined to do so. In the process, he could be establishing a precedent for President Donald Trump and the GOP-led Supreme Court to use in the fall to similarly invalidate absentee ballots. The crisis could easily intersect with the new directive the Trump administration sent to the postal service to delay first-class mail rather than deliver it if doing so required working overtime. Unless it’s reversed, the order will lead to a delay in voters receiving mail-in ballots and a delay in getting them returned. If they come in late, the Court could use Cuomo’s precedent to throw out millions of ballots.

In the lead-up to the election, Cuomo touted a change in the law that allowed absentee ballots to be dropped in the mail in New York as late as Election Day, June 23. Now those ballots are the ones least likely to be counted; a major reason the Cuomo-run Board of Elections is using to invalidate ballots is a lack of a postmark if the ballot arrived at the BoE after that date. Cuomo could fix this issue easily by issuing an executive order accepting all signed ballots that come in within a few days of the deadline.

If a major Brooklyn post office was not postmarking ballots, that means voters who cast legitimate, timely ballots won’t have theirs count through no fault of their own.

Return mail that is postage-paid, like a ballot, is generally not postmarked — the mark is used to make sure a stamp isn’t re-used, but since there’s no stamp, the postal service doesn’t need to mark it — but postal service employees are instructed to postmark ballots so that they can comply with the state rules. Still, sometimes a clerk forgets, and sometimes an entire post office forgets for days. Something like that appears to have happened in Brooklyn.

In the 12th Congressional District, Manhattan voters requested 77,453 ballots and returned 47,365: a 61 percent rate of return. (Many of the ballots requested simply never arrived at people’s homes.)

Of those that were mailed in by Manhattan voters, 8,939 ballots were invalidated for a variety of reasons by the staff review. That represents a 19 percent rejection rate. The leading cause of invalidations appears to be a failure by the voter to have signed and dated the ballot, according to several campaigns who have been monitoring the process. Election officials can fix that problem next election by making it clear where it needs to be signed, but for this primary, there’s little that can be done.

Left/Top: Ballot from NY, Right/Bottom: Ballot from CA.Photos: Provided to The Intercept

That same 19 percent rate prevailed in Queens, where 16,639 ballots were requested, 9,631 were returned, and 1,831 were rejected. It was worse in Brooklyn, where 13,494 ballots were requested, 8,285 were returned, and 2,284 were invalidated: a rejection rate of 28 percent. Something structural must have driven such a large disparity.

Valerie Vazquez-Diaz, a spokesperson for the NYC Board of Election, declined to comment on the staff documents, saying “we don’t release numbers until we certify the election.”

If a major Brooklyn post office was not postmarking ballots, that means voters who cast legitimate, timely ballots won’t have theirs count through no fault of their own. Invalidating a ballot because it has no signature may do a disservice to democracy, but at least the rule is applied uniformly across the city. Punishing a borough because of its post office is a different matter, and could serve as de facto suppression of minority votes.

It also raises the question of why a postmark is preferable to extending the date by which a ballot must be received. If a ballot is received by the Board of Elections on or before June 23, there is no question that the voter sent it in on or before June 23. And, indeed, Cuomo recognizes that reality. Vazquez-Diaz, said that any ballot received by June 23, whether postmarked or not, is considered valid. “The only way for us to determine timeliness is the postmark,” Vazquez-Diaz said — unless an executive or judicial order changed the criteria for timeliness to make votes received within reasonable mail delivery valid.

Do you have a story about mail-in ballots you want to share? Email us at [email protected] or use one of these secure methods to contact a reporter.

But if a ballot was dropped in the mail on June 23, an option that was repeatedly trumpeted by Cuomo, it likely wouldn’t arrive at the BoE until several days later. An order that deemed any ballot received by, say, the end of the week, June 26, might make valid a handful of ballots that were dropped in the mail the day after the scheduled election. But not accepting any ballots that arrived after June 23 without a postmark necessarily disenfranchises thousands of voters who did cast their ballots on time. And a ballot dropped in a mailbox on June 23 might not have been picked up by a letter carrier until the next day, giving it a postmark of June 24, but it should be no less of a legal vote than one marked with a 23. Cuomo is within his power to reenfranchise tens of thousands of New Yorkers by deeming any ballot received within a second-class-mail window of June 23 to be valid.

That’s an argument being made by the campaign of Emily Gallagher, who challenged 48-year incumbent Joseph Lentol for a Brooklyn-based State Assembly seat. Gallagher was trailing by nearly 2,000 votes after Election Day, but is within striking distance depending on how absentees go, and how many are counted. Andrew Epstein, Gallagher’s campaign manager, said that the campaign is working with attorneys to file an injunction that would block the BoE from invalidating ballots without a postmark that arrived close to the election.

Like other insurgent candidates with a strong grassroots organizing component, Gallagher appears to have done significantly better with absentee ballots than on Election Day. Indeed, her campaign’s analysis found that neighborhoods she won on Election Day — her strongholds — were also the neighborhoods where the most mail ballots were requested. Where Gallagher lost, very few ballots were requested. She trails after Election Day by roughly 1,800 votes, which is a number Epstein thinks they can make up. “But that’s dependent on a sufficient number of these ballots actually being counted,” he said.

In Gallagher’s district, 17,023 ballots were requested, and 9,689 were returned. If Gallagher wins 60 percent of those votes, she’ll win. But if the BoE tosses one of every three in the trash, she’ll lose.

The postmark issue could even affect the largest federal race left on the ballot, between incumbent Rep. Carolyn Maloney and her closest challenger, Suraj Patel.

Because Maloney’s district covers such a small sliver of Brooklyn (most of the district’s voters are in Manhattan and Queens), the disparate disenfranchisement may not have ordinarily made much of a difference. But the race is extremely close, so it might.

On Election Day, Maloney secured 41.7 percent of the vote in the 12th Congressional District primary, with 16,473 ballots cast in her favor. Patel was just behind, with 15,825, a gap of 648 votes. Two other progressive candidates won just over 7,000 votes between them.

There are some 52,054 ballots deemed valid by staff still to be counted and, even with Cuomo’s BoE rejecting so many ballots, there’s reason to believe the remaining ones lean toward Patel. According to Patel, his campaign requested a list of the 100,000-plus voters who requested ballots, and ran it through a voter database, finding that 51 percent of the ballot requests came from voters under the age of 45: not a favorable demographic for Maloney, based on Patel’s analysis of the electorate as well as the pattern of younger voters favoring progressive challengers to more moderate incumbents. The campaign worked intentionally to chase those voters and get them to return ballots, an effort that included a million calls and 400,000 text messages, his campaign spokesperson said. Patel said that he was hoping to be within at least 4,000 votes on Election Day, a gap he hoped to make up with mail-in ballots. Maloney has said she is confident her lead will grow when all the votes are counted, particularly in her stronghold of Manhattan.

Ballots are just now being counted officially in the Patel-Maloney race, and in the first batch, 174 were tossed for not having a postmark, suggesting the preliminary staff analysis will hew closely to the final decisions. Patel said that 110 of those arrived on June 24, meaning they certainly were mailed on time. He said that their review of ballots suggests about 800 in their sliver of Brooklyn alone will be thrown out over the postmark issue.

Marcela Mitaynes, a housing activist and democratic socialist with the backing of Alexandria Ocasio-Cortez, was, like Gallagher, trailing for a seat in the New York State Assembly on Election Day, behind by nearly 500 votes, but absentees pushed her over the edge. (She told The Intercept her team had not yet determined how many are being rejected.) On Wednesday afternoon, after the BoE tabulated around 4,000 mail-in votes, the 26-year incumbent Felix Ortiz conceded the race.

Similarly Walter Mosley, a machine-backed candidate for state Assembly and a close ally of Rep. Hakeem Jeffries, ended Election Day up roughly 600 votes over DSA and AOC-backed Phara Souffrant Forrest, a union nurse. Souffrant Forrest said it was so far unclear how many ballots Cuomo’s election board would reject.

Cuomo cannot claim to have been caught off guard by the problem. On June 22, election reform groups sent him a letter warning that a combination of postal service neglect and his urging people to vote by mail on Election Day would lead to mass disenfranchisement if he didn’t act to correct it. “We urge you to issue an Executive Order to avoid disenfranchising voters who, because of a perfect storm of circumstances beyond the control of any one entity, may have their absentee ballots returned to the Board of Elections with postmarks where the date is illegible or missing,” the groups wrote. “Ordering that any mailed primary ballot received by the Boards of Elections by June 30 that is missing or has an illegible dated postmark be presumed to have been timely mailed is critical to protecting the fundamental voting rights of New Yorkers.”

Update: July 16, 2020, 2:50 p.m. ET
This story has been updated to reflect the fact that New York State Assemblyman Felix Ortiz conceded the race to Marcela Mitaynes after absentee ballots were counted.