Election lawyer slams Brooklyn Dems over invalidated mail-in votes

rodneyse bichotte
Brooklyn Democratic Party boss Rodneyse Bichotte.
Photo by Caroline Ourso

A group of local watchdogs claim that thousands of mail-in ballots were frivolously discounted during the June 23 primary, and that the local Democratic party failed to do enough to get every vote counted.

“I would have expected the chairperson of the largest Democratic county in the nation to have been a plaintiff and brought this lawsuit with her army of lawyers herself,” said election lawyer Ali Najmi at an Aug. 4 virtual press conference, which came on the heels of his successful lawsuit to count more ballots.

Working on behalf of upstart Democratic Assembly nominee Emily Gallagher, Congressional candidate Suraj Patel, and dozens of voters, Najmi sued the state’s Board of Elections in federal court, arguing that they unlawfully invalidated thousands mail-in votes that weren’t postmarked by June 23. 

Judge Analisa Torres agreed with Najmi’s claims on Aug. 3, and ordered the BOE to reexamine thousands of previously invalidated ballots, as long as they were received by June 25, two days after the election, Gothamist/WNYC reported

The attorney specifically called out Brooklyn Democratic Party boss Rodneyse Bichotte for going on television to say Gov. Andrew Cuomo couldn’t change the rules to allow more votes to be counted after they were cast for fear of being sued, a logic the lawyer denounced as “flawed.”

“[Bichotte] went on NY1 regurgitating one of the most flawed legal theories I’ve ever heard, saying they couldn’t change this because they were afraid someone would sue them if they tried to pass an executive order that basically did what this lawsuit did,” said Najmi. 

Speaking on Inside City Hall with Errol Louis, Bichotte had said that she asked Cuomo to allow more votes via executive order, but that the chief executive declined for fear of litigation. 

“If [Cuomo] were to put in an executive order that would count all the ballots, that came in through the 30th [of June] that were not postmarked, people can sue, because he would pretty much arbitrarily picking a date and guessing,” Bichotte said during the July 9 interview.

Najmi argued that Cuomo has issued many executive orders that affected the election during the course of the pandemic and that party power brokers fed shoddy legal excuses to Bichotte, who is also an Assemblymember representing Flatbush. 

“I still have a question for Assemblymember Bichotte: Who put you up to this? I think you need some new lawyers,” Najmi said. “I don’t know who gave her this bad legal advice.”

The legal eagle added that Bichotte should have stepped up given Brooklyn seemed to have an especially high number of invalidated ballots at around 2,000, compared to between 20 to 60 tossed votes in other boroughs, according to court testimony by Dawn Sandow, deputy executive director of the Board of Elections. 

Judge Torres concluded from BOE’s testimony that the borough logged about a 50 percent higher rate of rejections in the race for Carolyn Maloney’s 12th Congressional seat than in the Manhattan or Queens sections of that district.

In a statement, Bichotte fired back at Najmi saying his comments were “misinformed,” given that the legislator introduced a bill on July 15 to allow more votes to be counted.

“Mr. Najmi’s petty criticism is grossly misinformed or he is just conveniently leaving out the fact that I introduced a non-postmark ballot bill to address this very issue,” the Brooklyn lawmaker said. “I have been one of the most vocal party leaders and legislators in the state on the postmark absentee issue, alongside good government groups like Common Cause and my colleagues calling for immediate reform to ensure every vote counts.”

Bichotte’s legislation would ensure that all votes received by BOE by a day after the election would be counted, regardless of postmark, a slightly smaller timeframe than the two-day leeway of the federal judge’s ruling.

The Board would also have to count votes they receive up to a week afterward, but with a postmark no later than Election Day, a day later than in current state Election Law, which says the postmark has to be from day before the election at the latest.

In the recent primary, progressive clubs like New Kings Democrats had pushed Cuomo further to issue an order to count all votes counted within a week after the election, regardless of postmarks.

During the Tuesday morning press conference, Patel – who hasn’t yet conceded to Maloney despite trailing the incumbent by 3,700 votes — slammed Cuomo and State Attorney General Letitia James for arguing in court on July 22 against counting the invalidated ballots. 

The Democratic bigwigs trying to reduce the vote echoed efforts by their Republican counterparts at voter disenfranchisement, Patel said. 

“I find it disconcerting that the State of New York Attorney General spent taxpayer dollars fighting to not count votes and arguing it’s not in the public interest,” Patel said. “We cannot just call out voter suppression and disenfranchisement when it’s red, it is equally important to call it out when it’s also in Democratic states.”

On the evening of Aug. 4, the state’s BOE said in a statement it would appeal Judge Torres’s ruling, citing a “tremendous burden on the local boards of elections” and setting an uncertain precedent.

“Given the totality of the circumstances here, we understand the desire to protect the rights of voters,” said BOE commissioner Douglas Kellner in a statement. “However, this will place a tremendous burden on the local boards of elections as they are preparing for the November general election and is highly unlikely to change the results in any contest.”