Federal judge Analisa Torres of the US District Court for the Southern District of New York has ruled that over one thousand absentee ballots previously deemed invalid because they lacked a timely postmark should be counted in the New York Congressional primary election.

All eligible voters in New York were allowed to cast absentee ballots during the COVID-19 pandemic, which resulted in an “overwhelming” volume of 1.2 million absentee ballots cast during the June 23 primary election. The New York Board of Elections had also stated that it would accept all ballots postmarked by June 23.  However, absentee ballots placed in a US Postal Service (USPS) mailbox on Election Day after the last pick-up time either received no postmark or a postmark from a subsequent date.

As a result, thousands of absentee ballots cast in New York City in the June 23 primary election were invalidated because they either arrived after the close of polls and did not have a postmark, or they had a postmark with a date after June 23. At least ten other county election boards in New York state also invalidated numerous absentee ballots because they lacked a valid postmark.

New York City voters brought action, alleging that their First and Fourteenth Amendment rights and corresponding rights under the New York Constitution were violated when their absentee ballots were deemed invalid because they lacked a USPS postmark.

Torres determined Monday that the plaintiffs had adequately shown irreparable injury because they alleged “a violation of their constitutional rights in connection with election results that will soon be certified as final.” She also found that allegations by voters that their ballots will be unconstitutionally invalidated is an irreparable harm.

The court concluded that the plaintiffs demonstrated a clear and substantial likelihood of success on the merits of both the First Amendment and Fourteenth Amendment claims. The burden on voting rights is especially severe because thousands of voters’ ballots would be considered invalid for reasons beyond the voters’ control. The postmark requirement was found to have arbitrarily and disparately valued one person’s vote over another.

Torres granted a preliminary injunction ordering the New York State Board of Elections to direct all local boards of elections to count all otherwise valid absentee ballots cast in New York’s June 23 primary election. The boards are to count all ballots received by June 24 or June 25, so long as the ballots are postmarked no later than June 23.