Absentee Ballot Voting and Vote By Mail Are Not Always the Same

As Dutchess Democratic County leader and Vice Chair of the New York Democratic Party’s Progressive Caucus, I have long fought for more accessible ballot access, believing that it will result in greater voter participation and a fairer election result. So I should be thrilled with New York’s current push to have as many people as possible vote by absentee ballot, right? Well, it’s not that easy.

In response to the restrictions placed on all New Yorkers under Governor Cuomo’s PAUSE orders, the Governor recently directed the 62 County Boards of Elections to mail absentee ballot applications to all qualified voters – complete with postage paid return envelopes.  This probably sounds like a great step to ensure that everyone’s vote will count, without having to endanger the election inspectors who work the polls and the voters themselves.

And most New Yorkers would agree.  A majority of voters believe that an absentee ballot is a variant of Vote by Mail and guarantees that their candidate choices are automatically tabulated. Unfortunately this is not always true.

What’s the Difference?

In most counties the absentee ballot review does not even begin until a week or more after Election Day. Then, to be counted, the ballot still must overcome a number of hurdles. An absentee ballot must be received in timely fashion, and if received after the election date must have a legible postmark. The ballot itself must be secured in an inner envelope. Everything must be completely sealed, signed and dated. Unless every single one of these criteria are met, the ballot – your ballot – isn’t opened, but is set aside at the outset. And if it does pass all the requirements, the ballot is then… almost cleared to be opened.

That’s because absentee ballots are always subject to review by the Commissioners of Elections, who themselves are partisan. Those of us who live in purple counties, neither fully Republican nor Democratic, know this review process all too well. The candidates and their respective attorneys sit with the Commissioners and are free to review the initial applications, the voter ‘dump’ (data about the voter), and sometimes the envelopes – before the ballot is itself opened. Objections are made, often for the flimsiest of excuses and almost always along partisan lines.

What’s left of the ‘unchallenged’ ballots are then opened and passed around to all at the table to be scrutinized and hopefully counted. But these ballots are still subject to challenge and set aside for reasons as minor as an extraneous mark, or a circle not 100% filled. Depending on how close the race, both candidates head to the courts seeking to keep ballots from ever being counted, ultimately tipping the race for one candidate. Sadly, the final results often depend on which party the judges themselves are enrolled in.

These arcane rules make getting the results from even normal races drag on.

Some examples:

In 2012 in Dutchess County, there was a close State Senate race. The Democrats won for the first time since FDR. The race was not certified until late December.

In 2016 Hillary lost in Dutchess on Election Night, but won after absentee ballots were counted. The certification of this race dragged on so that all the news outlets, and the NY Times map, showed erroneously for months that Dutchess County went for Trump.

Just last year in 2019, Ulster County had a very close District Attorney race. With 2,369 absentee ballots to count, nearly 150 absentees were rendered invalid and the final certification of the DA race did not take place until January 9, 2020.  The race was decided by 78 votes. 

These partisan brawls tend to occur in general elections, and in counties where both parties are competitive.  But in certain districts in New York City, where the primaries really decide the November winner, it can be Democrats versus Democrats.  A perfect example of this would be the 2019 Democratic primary for Queens District Attorney.

What Needs Changing?

Disqualifying a voter’s ballot because a box was not checked, it had an extraneous marking, or the envelope wasn’t properly sealed is not protecting democracy it is actively suppressing votes. This is not what the spirit of the law intended which is more, not less, voter participation.

Common sense needs to prevail, not politicized election laws that enable well-paid niche specialty lawyers to profit off the backs of the electorate. But while these byzantine rules are a cash cow for partisan legal counsels, they are a disservice to the voters.

This is voter disenfranchisement and it happens here in New York all the time. To put it succinctly: ballots should count, and they should be counted with expediency. With an anticipated huge increase in the number of absentees cast this year, when can we expect results for our closer races?

While I understand the value of expanding the number of voters through absentee ballots, that value is undercut if NYS election law continues to allow a small number of individuals to decide – on the basis of completely trivial reasons – whose vote gets counted.

We need to change the laws governing the method of how we count absentee ballots.

Otherwise, close races, whether for Congress, Senate or Assembly will drag on interminably, and won or lost in the courts instead of the ballot box.