OPINION AND ORDER 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.
