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NY Board of Elections Was Sued Over Ballots Without Postmarks But Injunction Not Expanded

By Matthew Russell Lee, Patreon Order
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, Oct 23 – The last election in New York has been sued, for the disqualification of absentee ballots. And on August 3, a partial preliminary injunction was granted requiring more ballots to be counted.

 On July 29, U.S. District Court for the Southern District of New York Judge Analisa Torres held the first of two days of evidentiary hearings; here was the end, live tweeted by Inner City Press' @SDNYLIVE feed, here: (from the 2d day is below).

 Now on October 23, Judge Torres has ruled that With the November 3, 2020 general election (the “General Election”) approaching, Plaintiffs now move to expand the scope and breadth of the August 3 Order. Plaintiffs ask the Court to: (1) extend the order to cover all upcoming elections; (2) direct the NYSBOE to require Local Boards to send out absentee ballot applications and ballots promptly upon request; and (3) direct the NYSBOE to require Local Boards to count all otherwise valid absentee ballots without regard to whether they are postmarked. Alternatively, Plaintiffs request that the Court order the NYSBOE to require Local Boards to provide voters a pre-rejection notice for absentee ballots with a late or missing postmark, and an opportunity to cure the defect by affidavit. In addition, Plaintiffs seek leave to file a second amended complaint adding Alessandra Biaggi as a plaintiff. For the reasons stated below, Plaintiffs’ request to file a second amended complaint is GRANTED. The motion to expand the injunction is DENIED." Full order on Inner City Press' DocumentCloud here.

From July 29: the BOE "head of canvas" in Brooklyn has parked his car and logged on - to testify.  Board of Elections witness: We got a lot of ballots a week before...  Judge Torres: Was there a process of postmen giving ballots to individual staff members?? Witness: Not normally.  Judge Torres: Segregated by day? Witness: Initially when it arrives. 

Law Dep't lawyer: You only reviewed postmark on ballots arriving after June 23? Witness: Yes. They are transferred to our voting machine. Law Dept: How are they transported? Witness: A bi-partisan team. 

Law Dept: Can campaigns get information about the absentee ballots? Witness: They can have a watcher who has the ability to object to validity. Judge Torres: Hold on for a moment.  

NY Board of Elections witness: We had an incident in 2018 when a bunch of ballots were delivered late to office. [A beat]. Five months late. 

Today done - tomorrow a Postal Service witness.

Judge Analisa Torres tells Law Department lawyer to order transcript. He says given City's financial condition, no transcripts unless urgent.

Judge Torres: Go to Mr. Johnson. This is Constitutional. I'm ordering it   

 On July 30, there was  USPS witness Allen Tanko. Inner City Press tweeted:

Witness deals with Manhattan and The Bronx. Says the other district covers "Staten Island, Brooklyn & Flushing." Flushing only? He says he doesn't know

The USPS witness says there was a "post mortem" meeting with the Board of Election, "about what we could tighten up." Yeah - how about postmarking pre-paid envelopes / ballots?

 USPS witness: the ballots / business reply mail were run through Tremont Station in The Bronx, and in Manhattan at Bowling Green and Village stations.

Judge Torres: What's BRM? Witness: Business Reply Mail. No postage on it.

On August 3, Judge Torres ruled including "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. 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."

The case is Gallagher et al. v. N.Y. State Bd. of Elections et al., 20-cv-5504 (Torres)


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