ADDITIONAL CASES Maria D. Kaufer and Ethan Felder, Plaintiff-Intervenors v. New York State Board of Elections; Peter S. Kosinski, Andrew Spano, and Douglas Kellner, individually and in their official capacities as Commissioners of the New York State Board of Elections; Todd D. Valentine, Robert A. Brehm, individually and in their official capacities as Co-Executive Directors of the New York State Board of Elections; and Andrew Cuomo as Governor of the State of New York; New York City Board of Elections; Patricia Anne Taylor individually and as President of the New York City Board of Elections; and Michael J. Ryan, individually and as the Executive Director of the New York City Board of Elections, Defendants ORDER This action challenges the constitutionality of the New York Election Law which requires that mail-in absentee ballots be postmarked. N.Y. Elec. Law §8-412(1). Plaintiffs pursued a similar challenge in the aftermath of New York’s June 23, 2020 primary election (the “June 23 Primary”), when errors by the United States Postal Service (the “USPS”) caused thousands of timely-cast ballots to arrive without postmarks or with postmarks applied too late. ECF No. 91. On August 3, 2020, the Court granted Plaintiffs’ motion for a preliminary injunction with respect to that election (the “August 3 Order”) and directed the Commissioners of the New York State Board of Elections (the “NYSBOE”) to order all local boards of elections (“Local Boards”) to count certain absentee ballots cast in the June 23 Primary. Id. 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. BACKGROUND I. Plaintiffs and Non-Party Declarants On September 11, 2020, Plaintiffs filed a first amended complaint naming thirteen New York State voters: Maria Barva, Tess Harkin, James McNamee, Miriam Lazewatsky, Myles Peterson, Caitlin Phung, Kristin Sage Rockerman, Samantha Pinsky, Antonio Pontón-Núñez, Jillian Santella, Aaron Seawright, Katherine Stabile, and Christian O’Toole. FAC
13-25, ECF No. 109. Each voted by absentee ballot in the June 23 Primary and mailed their ballots on June 22 or 23, 2020. Id. Nine of the voters nonetheless had their ballots preliminarily invalidated due to an untimely postmark, and two had their ballots rejected in the final count. Id. One, Lazewatsky, does not know whether her ballot was invalidated. Id. 19; Lazewatsky Decl.
