Expert: U.S. has 2 weeks to get mail voting right to avoid Election Day mess

On June 23, Suraj Patel challenged incumbent Rep. Carolyn Maloney in New York's Democratic primary. Six weeks after Election Day, Patel is still a candidate — because there are so many absentee ballots uncounted that officials have yet to declare a winner in his race.

Election law expert Nate Persily says New York's problem could be the nation's problem come November without swift and drastic action.

"I think we have two weeks to make the critical decisions that are necessary to pull off this election," said Persily, a professor at Stanford Law School.

Americans have been voting by mail in presidential elections since the Civil War, when ballots from Union soldiers in the field helped re-elect Abraham Lincoln. In the 2016 presidential election, 33 million voted by absentee ballot or by mail. Because of COVID-19, however, experts think as many as 80 million voters could be mailing it in this Nov. 3.

Watch Cynthia McFadden tonight on NBC Nightly News with Lester Holt for more on this story.

Persily says what's happening in New York is a "a cautionary tale of how states and localities really need to get prepared and work with the postal service to make sure that mail balloting works."

Patel, who has been locked in a court battle over absentee ballots, agrees the primary has been a debacle. Said Patel, "We have to have the self-reflection and the introspection to be able to say, 'We messed it up.'"

Nearly 2 million New Yorkers tried to vote by mail in this June's primary, according to officials, 10 times the number four years ago.

Experts said state election officials were woefully unprepared for the flood of absentee ballots.

Gov. Andrew Cuomo had tried to make the process easier by sending voters postage-paid envelopes with all their requested ballots, but that backfired because ballots must be postmarked with a date to be counted. The U.S. Postal Service doesn't usually do that for pre-paid, metered mail.

In New York City alone, court filings show a total of 12,500 mailed-in ballots were invalidated because they lacked postmarks.

Said Patel, who ran in a district that straddles Manhattan, Queens and Brooklyn, "You are not entitled to a perfect election, America. But you are entitled to a free and fair one."

Currently trailing by 3,700 votes, Patel sued to have more ballots without postmarks counted.

Suraj PatelSuraj Patel for Congress

On Monday night, a judge ruled that at least 1,000 disputed ballots had to be included in the count.

A spokesperson for New York City's Board of Elections said, "Respectful of the Court’s decision issued last night, our borough staff will proceed to prepare our operations to canvass any additional ballots, while we await State Board guidance as directed in the Court order."

But the state is appealing the order to count the ballots, "citing the “tremendous burden on the local boards of elections and the uncertainty the precedent will cause going forward.”

In addition, 33,000 ballots were mailed to voters the day before Election Day, meaning they could never make it back in time. Some voters didn't receive ballots until after Election Day.

New York election officials say they were doing their best under difficult circumstances. That didn't stop President Donald Trump, a critic of voting by mail, from citing the New York mess to make a point.

"It's been a total disaster," said Trump Monday. "They're six weeks into it. Now they have no clue what's going on.

Persily says Congress needs to appropriate $3 billion to $4 billion immediately to "put the basics in place" so that this fall's unusual election will succeed.

He believes that if Congress fails to act and the election is close, the results may not be known and the decision on who wins may go to the Supreme Court.

"Democracy is more than just a process of casting a ballot," said Persily. "It's also about confidence in the results, and confidence in the people who are going to be our leaders, and I'm worried that that's slipping away."

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