Gallagher v. N.Y.S. Bd. of Elections

• Decision Date: 03 August 2020
• Docket Number: 20 Civ. 5504 (AT)
• Citation: 477 F.Supp.3d 19
• Parties: Emily GALLAGHER, Suraj Patel, Katherine Stabile, Jillian Santella, Aaron Seabright, James C. McNamee, Kristin Sage Rockerman, Maria Barva, Miriam Lazewatsky, Myles Peterson, Samantha Pinsky, Christian O'Toole, Tess Harkin, Caitlin Phung, Antonio Pontex-Nunez, individually and on behalf of all others similarly situated, Plaintiffs, v. NEW YORK STATE BOARD OF ELECTIONS ; Peter S. Kosinski, Andrew Spano, and Douglas Kellner, individually and in their official capacities as Commissioners of the New York State Board of Elections ; Todd D. Valentine, Robert A. Brehm, individually and in their official capacities as Co-Executive Directors of the New York State Board of Elections ; and Andrew Cuomo as Governor of the State of New York, Defendants. Maria D. Kaufer and Ethan Felder, Plaintiff-Intervenors, v. New York State Board of Elections ; Peter S. Kosinski, Andrew Spano, and Douglas Kellner, individually and in their official capacities as Commissioners of the New York State Board of Elections ; Todd D. Valentine, Robert A. Brehm, individually and in their official capacities as Co-Executive Directors of the New York State Board of Elections ; and Andrew Cuomo as Governor of the State of New York; New York City Board of Elections; Patricia Anne Taylor individually and as President of the New York City Board of Elections; and Michael J. Ryan, individually and as the Executive Director of the New York City Board of Elections, Defendants.
• Court: U.S. District Court — Southern District of New York

477 F.Supp.3d 19

Emily GALLAGHER, Suraj Patel, Katherine Stabile, Jillian Santella, Aaron Seabright, James C. McNamee, Kristin Sage Rockerman, Maria Barva, Miriam Lazewatsky, Myles Peterson, Samantha Pinsky, Christian O'Toole, Tess Harkin, Caitlin Phung, Antonio Pontex-Nunez, individually and on behalf of all others similarly situated, Plaintiffs,

v.NEW YORK STATE BOARD OF ELECTIONS ; Peter S. Kosinski, Andrew Spano, and Douglas Kellner, individually and in their official capacities as Commissioners of the New York State Board of Elections ; Todd D. Valentine, Robert A. Brehm, individually and in their official capacities as Co-Executive Directors of the New York State Board of Elections ; and Andrew Cuomo as Governor of the State of New York, Defendants.

Maria D. Kaufer and Ethan Felder, Plaintiff-Intervenors,

v.New York State Board of Elections ; Peter S. Kosinski, Andrew Spano, and Douglas Kellner, individually and in their official capacities as Commissioners of the New York State Board of Elections ; Todd D. Valentine, Robert A. Brehm, individually and in their official capacities as Co-Executive Directors of the New York State Board of Elections ; and Andrew Cuomo as Governor of the State of New York; New York City Board of Elections; Patricia Anne Taylor individually and as President of the New York City Board of Elections; and Michael J. Ryan, individually and as the Executive Director of the New York City Board of Elections, Defendants.

20 Civ. 5504 (AT)

United States District Court, S.D. New York.

Signed August 3, 2020

Remy Green, Cohen & Green, Ridgewood, NY, for Plaintiffs.

OPINION AND ORDER

ANALISA TORRES, District Judge:

In this action, fourteen New York City voters who voted by absentee ballot in New York's June 23, 2020 primary election (the "June 23 Primary"), and four candidates on the ballot allege that their rights under the First and Fourteenth Amendments to the United States Constitution, and corresponding sections of the New York Constitution, were violated when their absentee ballots were deemed invalid because they lacked a United States Postal Service (the "USPS") postmark, or a timely postmark.

Plaintiff Emily Gallagher aspires to be the Democratic Party's candidate for the State Assembly in New York's 50th Assembly District. Plaintiff Suraj Patel is running to be the Democratic candidate for the House of Representatives in the 12th Congressional District. Each of the voter Plaintiffs, Katherine Stabile, Jillian Santella, Aaron Seabright, James C. McNamee, Kristin Sage Rockerman, Maria Barva, Miriam Lazewatsky, Myles Peterson, Samantha Pinsky, Christian O'Toole, Tess Harkin, Caitlin Phung, and Antonio Pontex-Nunez, claims that they mailed their absentee ballots on either June 22 or 23, 2020, but the ballots were rejected by the New York City Board of Elections (the "NYCBOE") due to the absence of a timely postmark. Compl., ECF No. 1.

Plaintiff-Intervenors, Maria D. Kaufer and Ethan Felder, are candidates for Democratic District Leader in Part A of New York's 28th Assembly District. Intervenor Compl. ¶¶ 12–13, ECF No. 40. Like Plaintiffs, they claim that absentee ballots cast in their races were invalidated for lack of a timely postmark.

Now before the Court are Plaintiffs’ and Plaintiff-Intervenors’ motions, brought pursuant to Rule 65 of the Federal Rules of Civil Procedure, for a preliminary injunction ordering Defendants—the New York State Board of Elections (the "NYSBOE"), Commissioners Peter S. Kosinski, Andrew Spano, and Douglas Kellner, Co-Executive Directors Todd D. Valentine and Robert Brehm, and Governor Andrew M. Cuomo (together, the "State Defendants")—to count all absentee ballots received by boards of elections by June 30, 2020, whether or not such ballots bear a timely postmark. Pl. Mot., ECF No. 3; Compl. at 21. Plaintiff-Intervenors join in this request, and also seek emergency relief against the NYCBOE, President Patricia Anne Taylor, and Executive Director Michael J. Ryan (together, the "City Defendants"). Intervenor Mot., ECF No. 11.

Starting on July 29, 2020, the Court held a two-day evidentiary hearing via videoconference. Following are the Court's findings of fact and conclusions of law.

At the hearing, Plaintiffs called Emily Gallagher; Mikael Haxby, Data Director, New Kings Democratic Club; Douglas Kellner; Allen Tanko, Marketing Manager, USPS New York District (covering Manhattan and the Bronx); Michael Calabrese, Manager, USPS Morgan Processing and Distribution Center; and Sherilyn Simmons, Consumer Affairs Manager, USPS Triboro District (covering Brooklyn, Queens, and Staten Island). Plaintiff-Intervenors did not call any witnesses. Robert Brehm testified on behalf of the State Defendants. City Defendants called the following NYCBOE employees: Georgea Kontzamanis, Operations Manager; Dawn Sandow, Deputy Executive Director; and Raymond J. Riley, Chief Clerk, Kings County.

The Court credits the witnesses’ testimony. However, to the extent that Tanko's testimony about the postmarking and delivery of mail contradicted that of Calabrese, the Court adopts Calabrese's version of the facts because, as Tanko conceded, Calabrese has superior knowledge and experience with respect to postal service operations and procedures.

For the reasons stated below, the preliminary injunction is GRANTED as follows: the Commissioners of the NYSBOE are ORDERED to direct all local boards of elections to count all otherwise valid absentee ballots cast in the June 23 Primary which were (1) received by June 24, 2020, without regard to whether such ballots are postmarked by June 23, 2020 and (2) received by June 25, 2020, so long as such ballots are not postmarked later than June 23, 2020.

FINDINGS OF FACT

I. The Role of State and Local Boards of Elections

New York's election system relies on a state board of elections, the NYSBOE, and a number of local boards of elections, including the NYCBOE. Hearing Tr. 77:20–78:11; Brehm Decl. ¶¶ 3–4, ECF No. 18. The NYSBOE is responsible for maintaining the state voter registration database with the records that are provided by the county boards of elections, canvassing contests that are statewide or that cross county boundaries, and maintaining the campaign finance disclosure system. N.Y. Elec. Law § 5-614 ; see Hearing Tr. 78:2–8. The NYSBOE also has the power to "issue instructions and promulgate rules and regulations relating to the administration of the election process," and "perform such other acts as may be necessary to carry out the purposes of" the Election Law. N.Y. Elec. Law § 3-102(1), (17) ; Hearing Tr. 78:14–79:7; Brehm Decl. ¶ 6.

Local boards of elections are responsible for the conduct of elections, including organizing poll sites, printing ballots, mailing absentee ballots, and then canvassing the vote and reporting the results to the NYSBOE. N.Y. Elec. Law § 9-202 ; see Hearing Tr. 77:20–25; Brehm Decl. ¶ 6. The local boards are required to complete a canvass of ballots and certify results within 13 days of a primary election. N.Y. Elec. Law § 9-200. Overburdened by the large volume of absentee ballots cast during the COVID-19 pandemic, the NYCBOE failed to meet that deadline for the June 23 Primary. Hearing Tr. 410:22–411:3. Under Election Law § 4-112, the NYSBOE must "certify to each county board of elections the name and residence of each candidate nominated" in a primary election "not later than fifty-five days before a general election."

II. The June 23, 2020 Primary Election and Absentee Ballots

During April and May of 2020, in response to the COVID-19 pandemic, Governor Andrew M. Cuomo issued a series of executive orders modifying state election law as it pertains to the use of absentee ballots for the June 23 Primary. See N.Y. Exec. Order No. 202.15 (Apr. 9, 2020); N.Y. Exec. Order No. 202.23 (Apr. 24, 2020); N.Y. Exec. Order No. 202.26 (May 1, 2020).

New York Election Law § 8-400 permits a voter, upon application, to receive an absentee ballot for any primary election if the voter expects to be: (a) absent from the county of his or her residence; (b) unable to appear in person due to illness or physical disability; (c) a resident or patient of a veterans health administration hospital; or (d) absent from his or her residence because he or she is detained in jail.

On April 9, 2020, the Governor issued Executive Order 202.15, which temporarily suspended and modified § 8-400 to allow a voter to receive an absentee ballot based on a temporary illness due to the potential for contraction of COVID-19. N.Y. Exec. Order No. 202.15 (Apr. 9, 2020). Executive Order 202.15 further modified § 8-400 to allow for electronic absentee ballot applications, thereby eliminating the requirement of a signature or in-person appearance. Id. On April 24, 2020, Governor Cuomo issued Executive Order 202.23, which again modified § 8-400 by directing the boards of elections to send absentee ballot applications to all eligible voters. N.Y. Exec. Order No. 202.23 (Apr. 24, 2020).

Finally, Executive Order 202.26, issued on May 1, 2020, modified § 8-406 "to the extent that any ballot sent to a voter for a primary or special election to be held on June 23, 2020 shall be provided with a postage paid return envelope." N.Y. Exec. Order No. 202.26 (May 1, 2020); see Hearing Tr. 111:5–10. Thus, absentee ballot return envelopes specified that "POSTAGE WILL BE PAID BY ADDRESSEE." See, e.g. , Pl. Ex. 1. Prior to this Executive Order, boards of elections were only required to send a voter a ballot and an envelope. See N.Y. Election Law § 8-408. Postage paid return envelopes had not been used in the preceding two decades. Hearing Tr. 81:4–21, 82:20–83:4.

The New York State Legislature also acted. The Election Law was amended to allow, among other things, a voter to request an absentee ballot over the Internet. NY LEGIS 91 (2020), 2020 Sess. Law News of N.Y. Ch. 91 (S. 8130-D) § 1. Section 8-412 was modified to require that absentee ballots postmarked on or before Election Day...