CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/27/2023 1

Modifying the Postmark Requirement 

for Mailed Ballots in New York 

Gallagher v. New York State Board of Elections 

(Analisa Torres, S.D.N.Y. 1:20-cv-5504) 

New York’s allowance for voting by mail during the global Covid-19 

infectious pandemic of 2020 had a postmark requirement, but prepaid mail was not always postmarked, so a district judge ordered that 

ballots received by the day after the election would be counted without a postmark and ballots received by the following day would be 

counted unless they had a postmark after election day. 

Subject: Absentee and early voting. Topics: Absentee ballots; 

Covid-19; intervention; primary election; class action. 

Fifteen voters, including two candidates, filed a federal class-action complaint 

in the Southern District of New York on Friday, July 17, 2020, alleging that 

New York’s enacted provisions for voting by mail in light of the global Covid19 infectious pandemic, including a requirement that postage be prepaid by 

election authorities, would require postmarks for mailed ballots to be counted, 

but the post office would not postmark prepaid mail.1 With their complaint, 

the plaintiffs filed a motion for a preliminary injunction.2

Noting “the counting of absentee ballots currently under way from the 

June 23, 2020 New York State Democratic primary,” the plaintiffs also filed a 

letter request for an accelerated schedule and “permission to—given the pandemic—serve Defendants by reliable electronic means.”3

 Judge Edgardo Ramos granted the letter motion that day, noting, “If oral argument or a hearing 

is appropriate, it will be scheduled when a judge is assigned to the case.”4 Briefing was to be completed on July 23.5

On Monday, the court assigned the case to Judge Analisa Torres.6

 On 

Thursday, she allowed two additional candidates to intervene in the case.7 On 

Sunday, July 26, she set the case for a videoconference hearing on July 29, allowing members of the public to attend by telephone.8

 Because time was of the 

essence, Judge Torres provided detailed information in advance of the hearing 

about factual questions that would help her resolve the injunction motion.9

1. Complaint, Gallagher v. N.Y. State Bd. of Elections, No. 1:20-cv-5504 (S.D.N.Y. July 17, 

2020), D.E. 1. 

2. Preliminary-Injunction Motion, id. (July 17, 2020), D.E. 3. 

3. Letter Motion, id. (July 17, 2020), D.E. 5. 

4. Endorsed Order, id. (July 17, 2020), D.E. 6. 

5. Endorsed Order, id. (July 22, 2020), D.E. 15. 

6. Docket Sheet, id. (July 17, 2020). 

Tim Reagan interviewed Judge Torres for this report by telephone on September 1, 2020. 

7. Opinion, Gallagher, No. 1:20-cv-5504 (S.D.N.Y. July 23, 2020), D.E. 20, 2020 WL 

4261172; see Intervenors’ Complaint, id. (July 25, 2020), D.E. 40. 

8. Hearing-Agenda Order, id. (July 26, 2020), D.E. 48; see Order, id. (July 27, 2020), D.E. 

52 (noting that the court would use Skype for Business for the videoconference). 

9. Hearing-Agenda Order, supra note 8; Interview with Hon. Analisa Torres, Sept. 1, 2020. 
Modifying the Postmark Requirement for Mailed Ballots in New York 

2 Federal Judicial Center 10/27/2023 

The evidentiary hearing lasted two days.10 Each day began with an admonition against recording the proceeding.11 At the beginning of the first day, 

Judge Torres declined a request from one of the attorneys to address standing 

immediately: “We will not be addressing standing issues at this hearing. This 

is a purely fact-based hearing. Of course, Counsel, when the hearing is over, I 

will hear legal arguments, but not beforehand.”12

If not for Covid-19, the hearing would have been conducted in person.13

Before the hearing, Judge Torres consulted with two colleagues who had already presided over bench trials by video.14 Among the most helpful advice 

was how important it was for attorneys to test their and their witnesses’ equipment in advance.15

One disadvantage of the videoconferencing platform used was a delay between when someone started to speak and when their video showed up on the 

screen, which meant that short answers were never seen.16

On August 3, Judge Torres ordered New York’s election officials 

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, 2020.17

On October 23, reviewing an amended complaint, Judge Torres declined 

to extend her injunction to cover the November 3 general election, finding 

that the plaintiffs’ concerns, despite legislative changes to voting by mail made 

since the primary election, were speculative.18 Judge Torres signed a stipulated 

settlement on September 9, 2021.19

Before becoming a federal judge, Judge Torres spent thirteen years as a 

state judge, and she found her familiarity with New York’s election laws and 

procedures very helpful in presiding over this case.20

10. Gallagher v. N.Y. State Bd. of Elections, 477 F. Supp. 3d 19, 27 (S.D.N.Y. 2020). 

11. Transcript at 225, Gallagher, No. 1:20-cv-5504 (S.D.N.Y. July 30, 2020, filed Aug. 3, 

2020), D.E. 88; Transcript at 3, id. (July 29, 2020), filed Aug. 3, 2020), D.E. 86 [hereinafter July 

29, 2020, Transcript]. 

12. July 29, 2020, Transcript, supra note 11, at 9. 

13. Interview with Hon. Analisa Torres, Sept. 1, 2020. 

14. Id. 

15. Id. 

16. Id. 

17. Gallagher v. N.Y. State Bd. of Elections, 477 F. Supp. 3d 19, 27 (S.D.N.Y. 2020); see

Gallagher v. N.Y. State Bd. of Elections, 496 F. Supp. 3d 842, 845 (S.D.N.Y. 2020); see also 

Katie Honan, Judge’s Ruling Spurs Calls for Improved Voting Procedures, Wall St. J., Aug. 5, 

2020, at 10A. 

18. Gallagher, 496 F. Supp. 3d 842; see Amended Complaint, Gallagher v. N.Y. State Bd. of 

Elections, No. 1:20-cv-5504 (S.D.N.Y. Sept. 11, 2020), D.E. 109. 

19. Stipulated Settlement, Gallagher, No. 1:20-cv-5504 (S.D.N.Y. Sept. 9, 2021), D.E. 149. 

20. Interview with Hon. Analisa Torres, Sept. 1, 2020; see Federal Judicial Center Biographical Directory of Article III Federal Judges, www.fjc.gov/history/judges.