In other words, the interminable primary will go on for a while later. Late yesterday, a judge ordered the state of New York to count thousands of ballots invalidated for arriving late without postmarks. The state screwed up the ballot distribution and the Post Office failed to postmark them, the judge ruled, and ordered all ballots received by June 24 to be counted as valid.
It may not be the wrong decision, but it’s still problematic:
In granting the preliminary injunction Monday, Manhattan Judge Analisa Torres said the plaintiffs who brought the suit — including congressional candidate Suraj Patel and Brooklyn Assembly candidate Emily Gallagher — had proved that voters were disenfranchised and denied their constitutional rights after being encouraged to vote by absentee ballot during the coronavirus pandemic.
Torres said these arbitrarily disenfranchised voters were denied free speech, equal protection and due process due under the law.
Equal protection? A case can be made for it, and certainly for due process. The free speech argument is silly, but the disenfranchisement in New York’s mass mail-in voting wasn’t:
A major problem: Thousands of ballots that had stamps pre-paid by New York State were not post-marked by the Postal Service, particularly those coming from Brooklyn voters. But most other ballots were post-marked.
If such a post-marked ballot was not received by election officials by June 23, it was not counted.
Many ballots arrived at the elections board a day or two after the primary election because voters did not receive them in the mail from the Postal Service until Election Day.
That would be a problem, but it’s not the only problem New York is having with its mailed ballots. The judge’s order extends a process that still hasn’t been completed after more than six weeks of ballot counting, and there didn’t seem to be an end in sight even before this ruling. This order will extend that at least a week or two, maybe more if these ballots turn out to have other issues — as tens of thousands have already had in this primary election.
In fact, we still don’t know for certain who won the primaries for two House seats, which makes preparation for the general election just a tad bit awkward:
Mr. Patel trails the incumbent, Representative Carolyn B. Maloney, by some 3,700 votes, though more than 12,000 ballots have been disqualified, including about 1,200 that were missing postmarks, he said.
He is among the plaintiffs in a lawsuit filed in July that is asking a federal court to order election officials to count disqualified ballots. The lawsuit included testimony that election officials had mailed out more than 34,000 ballots one day before the June 23 primary.
A winner has also not been declared in a congressional district in the Bronx, where Ritchie Torres, a Democratic city councilman, holds a comfortable lead over several other contenders.
That prompted a taunt from Team Trump at Joe Biden, who has backed mass mail-in voting as the solution for the COVID-19 pandemic election process:
Since you think universal mail-in voting is no problem, can you tell us who won those two Congressional primaries in New York on June 23?
Given that it’s August 4th, that seems like a fair question. Biden is essentially endorsing failure.
This order foreshadows what will happen across the country if we use mass mail-in voting on a wide basis. We will get federal judges involved in every state, with conflicting orders on how to handle the ambiguities of ballot validation and counting. That in itself will raise questions about due process; if judges start issuing contradictory orders, voters in some states will get treated differently than in other states. The legal fights will stretch far past the statutory and constitutional deadlines for national elections, and will create an environment where hardly anyone will fully accept the legitimacy of the elections in some forms and at some levels.
That isn’t Judge Analisa Torres’ fault; she just got forced to deal with a bad system. That’s the fault of elected officials who keep pushing that bad and unreliable system as our solution to a problem that doesn’t require this level of change. If we can attend protests and shop at Walmart, then we can figure out how to vote in person for the national election in November.
Donald Trump has been making a weak argument against mail-in voting as a fraud risk. Last night, he made a better argument against its unreliability, although still flogging fraud at the same time. Trump should stick with the better — and by now undeniable — incompetence argument.