COVID-Related Election Litigation Tracker

Case Details

This database consolidates and tracks litigation concerning the effect of the pandemic on election law. The purpose of this tool is to provide an interactive list of relevant cases that can be searched by issue, court, status, and jurisdiction.

Case Details


Gallagher v. New York State Board of Elections


Gallagher v. New York State Board of Elections, No. 1:20-cv-05504 (S.D.N.Y.)

  Case Summary Plaintiffs requested declaratory relief with respect to the validation of ballots that were incorrectly or untimely postmarked by the USPS, despite defendants' assurances that such ballots would be valid. Plaintiffs allege that under New York Executive Order 202.26, pre-paid postage would be included in absentee ballots. Prior to the Executive Order, relevant election laws required voters to provide their own postage and required that such absentee ballots must be postmarked prior to or on the date of the applicable election. According to plaintiffs, the shift to a pre-paid postage envelope, despite assurances from defendants, resulted in the failure by the USPS to timely and adequately postmark such ballots, resulting in tens of thousands of votes in New York either being untimely postmarked or not marked at all, deeming such ballots invalid.
Filed 07/17/2020
State New York
Type of Court Federal
Circuit Second Circuit
Status Closed
Last Updated 03/13/2021
Issue Tag(s) Vote-by-Mail (Mail Voting Deadlines (for Applying, Receiving, Postmark))
Complaint(s) 07/17/2020: Complaint filed.
09/11/2020: Complaint filed.
Dispositive Ruling(s) 08/03/2020: Order/Ruling, Preliminary Injunction Granted: The court first addressed the issues of standing, sovereign immunity, necessary parties, and abstention in favor of plaintiffs before turning to the merits and the requested preliminary injunction. The court found an irreparable injury in the violation of Plaintiffs’ “constitutional rights in connection with election results that will soon be certified as final.” The court then held that the plaintiffs “demonstrated a clear and substantial likelihood of success on the merits of their First Amendment and Equal Protection Clause claims,” while noting that it did not need to address the likelihood of success on the merits for Plaintiffs’ separate procedural due process claim. As to the right to vote claim, the court considered whether the state’s actions unduly burdened the plaintiffs’ right to vote in the primary. Applying the Anderson-Burdick standard, the court found the burden in the specific circumstances of the case to be “exceptionally severe” because “a large number of ballots will be invalidated . . . based on circumstances entirely out of voters’ control.” Having found a severe burden to the plaintiffs’ rights, the court proceeded to apply strict scrutiny, finding that the state’s interest in ensuring ballots were cast before the close of polls on Election Day was valid, but that the postmark requirement was not narrowly tailored to achieve that interest. Instead, the court found that the postmark requirement was “grossly overinclusive” covering ballots that “cannot possibly have been put in the mail later than June 23.” The court also found that less restrictive means of achieving the state’s interest were available and that the postmark requirement would fail even under the more flexible, non-strict-scrutiny balancing test alternatively employed under Anderson-Burdick. For the Equal Protection Clause claim, the court examined whether the postmark requirement, under the circumstances, “created a voting process where the state ‘by later arbitrary and disparate treatment, value[s] one person’s vote over that of another.’” The court found two ways in which votes were valued differently. First, the USPS handled the postmark issue for ballots differently in different areas of the state. Second, because ballots travel at different speeds, ballots mailed at the same time on the same day might, by random chance, be treated differently--one might be counted and the other not counted. Having found a substantial likelihood of success on the merits, the court found that the equities tipped in the plaintiffs favor and that there was a strong public interest in granting an injunction. The case underscores the significant counting issues that can arise as a result of issues with the USPS and mail ballots.
10/23/2020: Order/Ruling, The US District Court for the Southern District of New York ruled in favor of the plaintiffs in part by granting their motion to expand their complaint, and in favor of the defendants by denying the motion to expand the preliminary injunction. Plaintiffs in this case request that the New York State Board of Elections extend the 8/3 ruling of the court on pre-postmarked ballots to all future elections, send absentee ballots and ballot applications promptly upon request and count valid absentee ballots regardless of whether they are postmarked. The Court finds that the Plaintiffs lack standing given the multiple options available to New York voters, the actions already taken by the New York State Board of Elections and the fact that for the November 3rd general election no ballots up to date have been rejected due to inconsistencies in policy regarding postmarking of ballots.
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