The city Board of Elections began opening and counting hundreds of thousands of absentee ballots Tuesday — with several local races undecided and Joe Biden’s election as president a foregone conclusion.

But that is how New York’s arcane absentee ballot tabulation system is set up, under state law that simply says that counting should begin no later than 14 days after Election Day. The New York City Board of Elections elects to wait a full seven days. 

State Sen. Michael Gianaris (D-Queens) Tuesday announced new legislation that would allow absentee ballots to be processed prior to Election Day, and then counted starting hours before polls close. Absentee ballots would still be accepted — and tallied — in the days after the election. 

‘Thank God we are not a swing state because otherwise this would be a national scandal.’

“All that should be left on Election Day is feeding the paper into the machine,” Gianaris said. “We are the latest state in the country to tabulate results. Thank God we are not a swing state because otherwise this would be a national scandal.”

As of Tuesday afternoon, the board announced it had received 713,536 absentee ballots, with more still trickling in by an end-of-day deadline for all absentee ballots to arrive by mail at the board’s five borough offices. (Military and overseas ballots have until Nov. 16, as long as they were postmarked by Election Day.)

That’s seven times more than the number received in New York City for the 2016 presidential election, thanks to an executive order by Gov. Andrew Cuomo allowing anyone in the state to request an absentee ballot to avoid in-person voting during the pandemic. 

A ‘Cure’ for Ballot Woes

Absentee voting has its own risks — notably, a relatively high share of ballots that can’t be counted because of glitches in the paperwork. Of the 713,536 absentee ballots received, the board preliminarily determined 4% invalid.

But with this election, voters for the first time will be contacted by phone, email or mail with requests to “cure” small errors such as missing signatures or unsealed envelopes, which the board estimates will apply to about 40% of problem ballots. 

Voters would then fill out a “cure affirmation” and send it back to the board by email, fax or mail, or by completing the form in person at a Board of Elections office. 

Ballot-checking in Brooklyn, Nov. 10, 2020. Credit: Ben Fractenberg/THE CITY

All that will take time — potentially weeks. A primary count under similar circumstances went on for more than six weeks this summer, and even longer in the contest between veteran Democratic Rep. Carolyn Maloney and challenger Suraj Patel, who lost. 

The system isn’t built to accommodate huge numbers of absentee ballots, said election attorney Sarah Steiner.

“We are exactly on time, there’s nothing going on that’s wrong,” Steiner said. “It’s too slow for the volume of absentees we’ve gotten this year. In general, it’s not too slow and not meaningful.”

Key Counts in Brooklyn

On Tuesday at the Board of Elections warehouse facility in Sunset Park, bipartisan pairs of staffers and temporary workers sitting at 21 tables in a cavernous room sorted ballots into piles of election districts and Assembly districts. 

In another corner of the floor, pairs sat at three tables, opening up ballots from the 58th Assembly District, which spans portions of East Flatbush and Carnarsie.

They reviewed the ballots for any errors, such as extraneous marks that would invalidate them. Valid ballots were placed aside to later be scanned into the machines, which were lined up in rows at the back of the room.

This is repeated seven days a week, during a scheduled shift each day into the evening, until the count is completed. 

Unlike some election boards around the country as Americans raptly watched the vote count last week, New York City Board of Elections counting sites do not provide public livestream video of the tally.

County Boards of Elections offices are required to report the results to the state Board of Elections by Nov. 28. The state must certify the election to the Electoral College by Dec. 8. 

State Sen. Andrew Gounardes (D-Brooklyn and Staten Island) speaks in Albany. Credit: New York State Senate

The counting process here will determine the outcome of a handful of close races that hang in the balance.

Freshman Rep. Max Rose, a Democrat running for reelection in a district spanning Staten Island and part of southern Brooklyn, is currently behind GOP Assemblymember Nicole Malliotakis by about 37,000 votes. He’s hoping against the odds that absentee votes — which tend to skew Democratic — may change his prospects. 

Also in Brooklyn, State Sen. Andrew Gounardes has yet to concede, despite Republican Vito Bruno’s eight percentage point lead

Absentee ballots could also play a decisive factor in Queens Assemblymember Edward Braunstein’s bid for reelection, with Republican opponent John Sakelos up by five percentage points. 

Vigilant for Double Votes

In the week that elapsed between Election Day and the start of tallying votes in New York City’s five boroughs, the board has been checking the voter rolls to flag any absentee ballots submitted by voters who also showed up in person at a poll site.

If two ballots were cast by the same voter, board staffers void the absentee ballot.

“We definitely are an odd state in that we allow voters to vote in person even if they sent an absentee ballot back in already,” said Jennifer Wilson, deputy director of the League of Women Voters in New York State. “New York State prefers you to vote in person.”

The city Board of Elections did not respond to a request for comment about preparations during the week-long period after Election Day and why the count did not start earlier. 

New York’s absentee ballot deadline is later than in other states such as Florida where mail-in votes must be received by Election Day.

The Board of Elections stored absentee ballots before workers began to count them in the agency’s Brooklyn warehouse, Nov. 10, 2020. Credit: Ben Fractenberg/THE CITY

But Florida and a number of other states, begin processing absentee ballots prior to Election Day and are able to more readily finalize election results. In North Carolina, counting begins prior to Election Day under the condition that the results remain confidential. Absentee ballots are accepted after Election Day.

“It [New York’s system] just leads to this delay which I think is frustrating to people,” said Sean Morales-Doyle, the deputy director of the Brennan Center’s Voting Rights and Elections Program. 

Boards “don’t need to meet this late to start the counting,” he added. “Some of it is the way the laws work, some of it is about decisions that elections boards are making.”

Election attorney Martin Connor emphasized that county Boards of Elections differ widely in resources, staffing, and the number of ballots to count. He said that several upstate boards have scheduled vote counts to commence later this week. 

“The New York City Board of Elections has hundreds of employees,” Connor said. “There are plenty of counties upstate where the BOE is two commissioners, two deputies and no staff.”

Gradual Reform 

Following the disarray of last June’s primary election — when the board disqualified more than 80,000 absentee ballots for missing signatures and other errors — the state legislature passed laws intended to prevent a recurrence. 

Now voters can now track their ballots and see when they are received. And boards are required to contact voters within a day of determining there’s an error to allow it to be cured during a five-day window following Election Day.

Workers examined absentee ballots for stray marks and more, Nov. 10, 2020. Credit: Ben Fractenberg/THE CITY

Advocates, election lawyers and elected officials said that New York should continue to pivot to both conduct absentee voting more efficiently and complete the count faster, in preparation for the potential widespread use of mail-in ballots in future elections. 

“I think we’re going to continue to have a large number of absentees, it’s a good idea for us to reassess the rules around validating and counting them,” Steiner said. 

The current system is “stretched way beyond anything it was designed to do,” Connor said. “We had an absentee system that served some old people.”