With regard to those UOCAVA voters who have requested to receive their voting materials by postal mail,
each affected County Board will use an expedited service (commercial delivery providers that will best
expedite the transmission process for their domestic UOCAVA voters and especially those overseas) in order
to avoid unnecessary delays in the delivery of the 3' Congressional District paper ballots to the relevant
voters. In addition, each County Board will provide to these voters a postage-paid return envelope allowing
them to utilize expedited mail service for the return of their voted ballot to further mitigate the shortened
timeframe.

C Z ith vi

Affected UOCAVA voters may not be aware of the unique proceedings upon which this waiver is predicated. In
addition, there exists the potential for voter confusion due to the proximity of the State Primary Election (for
which ballots to military voters have already been transmitted), the court-ordered Primary Election (for
which ballots to 246 of the total 1,012 UOCAVA voters in the district will be transmitted on Monday, August
22n4) and the General Election (for which Federal contest ballots are to be transmitted no later than
September 24** and State and Local contest ballots are to be transmitted not later than October 7**).
Therefore, it is imperative that County Boards take every reasonable opportunity to communicate with their
UOCAVA voters affected by this situation in order to minimize such potential confusion.

Each county board follow the following communication plan and timeline:

- After approval of a waiver, and as soon as practicable, each county board will transmit to their
affected UOCAVA voters a communication providing a clear and concise summary of the court-
ordered primary and how it will impact the number and timing of ballots they will receive. It will also
provide clear information as to the various deadlines for return of each ballot to be received. This
communication will be sent in the manner of transmission stated on each voter's application. For
those voters who have requested to receive their voting materials by postal mail, but who have also
provided an email address, this communication will also be sent via email. For those voters with a
postal mail preference for whom an email address is unavailable, additional language will be
included in their communication encouraging them to consider providing their respective county
board with a revised Federal Post Card Application (FPCA) for the purposes of establishing an email
address of record and potentially changing their transmission preference to “Email/Online” to allow
for the expeditious delivery of all future voting materials.

- The ballot for the 3" Congressional District will not be available to UOCAVA voters by the September
24*h transmission deadline for the General Election. However, each board will transmit the ballot
with the Presidenital and United State Senate contests by that deadline. In addition, as required by
Election Law §§ 10-108 [1] [c] and 11-216 [3] [b]), each board will also transmit a Federal Write-In
Absentee Ballot (FWAB) to each UOCAVA voter in the 3" Congressional District. A communication
will be included with these voting materials explaining to each voter that a General Election ballot for
the 3" Congressional District will not be transmitted until after the results of the October 6‘ Primary
Election are known. It will inform them of their ability to utilize the FWAB for the purpose of casting
their vote for this specific contest in advance of them receiving their official ballot, along with
information on how to find information on the results of the October 6" Primary Election at the State
Board’s web site to make them aware of the certified candidates for the 3" Congressional District in
the General Election. For those voters who have still not provided an email address, additional
language will again be included encouraging them to submit that information to their county board in
the form of a new FPCA.

Page 5 of 9


The Court’s order renders compliance with the 45 day pre-election requirement for transmittal of UOCAVA
ballots for the general election impossible. Accordingly, this hardship waiver application is being respectfully
submitted.

Page 8 of 9


Making Balloting Materials Available Quickly

The General Election ballot for the 3'4 Congressional District contest cannot be transmitted to UOCAVA voters
until the results of the Republican Primary to be held on October 6" are certified. In the event that it can be
determined after the close of polls on October 6", that there is an unambiguous winner! of the Primary
Election, each county board of elections will issue a provisional certification of the results by October 7",
which would allow the State Board to certify the General Election ballot that same day, and allow for the
transmittal of ballots on October 8" (31 days before the General Election). The normal canvasing, auditing
and final certification processes will still be undertaken ensuring every eligible vote is duly canvassed and
included in the final tallies.

Under normal circumstances, the post-primary certification process is completed within 15 days of the
election. Ifan unambiguous victor cannot be determined based on Election Day returns), the affected boards
will implement an expedited schedule utilizing the necessary staff resources to complete post-election tasks
not later than 7 days after the election. All of the boards affirmatively indicate they are capable of completing
their work in this timeframe. This includes the canvass of all absentee, special and affidavit ballots (Election
Law § 9-209); recanvass of all voting machines (Election Law § 9-200); and the post-election audit of
randomly selected voting machines (Election Law § 9-211). The normal notification sent by county boards to
the affected candidates and party chairs will reflect this expedited schedule, along with additional
information on the logistical and staffing changes being implemented to ensure that the affected parties have
enough notice to plan to fully participate in the aforementioned tasks.

Each county board will be able to certify its portion of the results of the Primary Election to the State Board
by October 13", The State Board will certify the General Election ballot for the 3 Congressional District to
the counties on or before October 14", It is then anticipated that counties will transmit the 3TM4 Congressional
District General Election ballot to affected UOCAVA voters not later than October 15 (24 days before the
General Election). In order to accomplish rapid transmittal upon certification, the State Board is also
requesting that each County Board prepare a set of UOCAVA Congressional ballots to account for both
possible outcomes of the October 6" Primary Election prior to such election, and have a sufficient number of
printed ballots of each set on hand to transmit to UOCAVA voters who have requested their balloting
materials by postal mail.

To best serve those voters who have requested to receive their voting materials online, the State will work
with the County Boards to facilitate the steps necessary to identify the eligible UOCAVA voters in the 3
Congressional District, coordinate and configure the local voter registration systems with the State’s voter list
and its SecureBallot online ballot delivery portal. Upon completion of each county’s preparation of their
voting materials, those materials would be uploaded to the SecureBallot portal which would then trigger the
notification process to voters as to the availability of their ballot.

* A winner is unambiguous when the margin of victory is greater than the total number of outstanding absentee
and affidavit ballots such that the uncanvassed ballots cannot change the winner of the election. New York has
certified elections on this basis many times in the past. Based on preliminary results, the state board sent a letter
advising of the unofficial results of the March 31, 2009 special election in the 20" Congressional District. Similar
letters have been sent with regard to various state legislative contests as well. In the last last federal primary held
in the 3° Congressional District, 5.5% of votes cast were by some form of absentee or affidavit ballot. Based on
current applications, it is estimated at least 9,900 non-UOCAVA absentee ballots will be issued for the October 6,
2016 primary.

Page 4 of 9


For those voters who have requested their voting materials be transmitted by postal mail, their
separate 3" Congressional District ballot will be sent by an expedited mail service. Boards will be
directed to utilize commercial providers that will most suitably expedite the transmission process for
their domestic voters and especially those overseas. As mentioned previously, each county board
will also provide for a return envelope allowing these voters to utilize the same expedited mail
service to return their voted ballots. Clear instructions as to the use of expedited mail service for
returning a ballot will be included with the transmitted materials.

All communications to voters will include a point of contact at their respective county board for
assistance with any question or part of the process.

The State Board of Elections will provide sample language to all boards to use for each
communication to ensure that similar language is being used for all affected voters.

Page 6 of 9


Appendix C: Providing sufficient time for UOCAVA voters

The date of the Republican Primary for the 3"4 Congressional District is set by federal court order for October
6%, 2016. The transmission date of the separate 3" Congressional District General Election ballot to the 1,012
affected UOCAVA voters is expected to be at least 24 days before the election. New York State Election Law
already allows for 13 days after the General Election for a timely sent UOCAVA ballot to be received by a
board of elections (Election Law § 10-114 [1] and § 11-212) Therefore, the receipt deadline for this separate
ballot will be extended an additional 8 days, so that any such ballot timely postmarked and returned by a
UOCAVA voter and received by a board of elections not later than November 29, 2016 will be canvassed. The
August 17, 2016 court order commanded the State Board to apply for a hardship exemption, and on that
authority the board is making this application. The board will, however, ask the court to affirmatively ratify
this receipt extension upon approval of the plan.

Page 9 of 9


2016 New York State Undue Hardship Waiver Request

1. State Name: New York

2. Chief State Election Official (CSEO):
First Name: Robert Last Name: Brehm
Title: Co-Executive Director
Address: 40 North Pearl St.
Address: Suite 5
City: Albany State: NY Zip: 12207

+4:2729

Email: Robert.Brehm@elections.ny.gov Phone: 518-474-8700 Fax: 518-486-4068

Gerda Ga

Signature (digital signature accepted):

3. Preferred State Election Contact:
First Name: Robert Last Name: Brehm
Title: Co-Executive Director
Address: 40 North Pearl St.
Address: Suite 5
City: Albany State: NY Zip: 12207

Aul 22 Z9Ile
OU

Date:

+4: 2729

Email: Robert.Brehm@elections.ny.gov Phone: 518-474-8700 Fax: 518-486-4068

4. Acknowledgement of UOCAVA voters’ right to vote

New York recognizes that the purpose of 42 USC 1973ff-1(a) (8) (A) is to allow absent
uniformed services voters and overseas voters sufficient time to vote in an election for Federal office.

Type initials: R.B. Date: 08/22/2016

Page 1of9


Appendix B: Undue Hardship Necessitating Waiver Request

New York's federal primary election was held on June 28, 2016.[1] Owing to impossibility created by a legal
challenge related to ballot access, a Republican primary in the 3rd Congressional District between Phillip
Pidot and Jack Martins was not held on that day.

Phillip Pidot and Jack Martins both filed designating petitions seeking the Republican nomination for the
office of Member of United States House of Representatives from the 3rd Congressional District of New York.
Philip Pidot’s Republican designating petition was ruled invalid by the New York State Board of Elections.

Mr. Pidot brought a proceeding to validate his designating petition in Nassau County Supreme Court which
was dismissed by Judge Thomas Adams on procedural grounds on May 11, 2016. A subsequent motion of
vacatur was denied on June 7, 2016 (Pidot et al v Macedo et al, No 3448/2016 [Sup. Ct. Nassau County, June 7,
2016]). Mr. Pidot appealed the dismissal of his proceeding to validate his designating petition to the New
York State Appellate Division, Second Department. The Second Department heard the matter on June 17,
2016 and rendered a decision the same day reversing the trial court dismissal and remanded the matter for a
“determination of the petition on the merits forthwith”. Pidot v. Madeco, No 2016-05794, 2016 WL 3355183
[2nd Dept 2016].

Upon remittitur, the matter came before Judge Arthur Diamond. After hearing the merits, Judge Diamond
ruled on June 23, 2016 that Mr. Pidot had 1,261 valid signatures on his Republican designating petition, more
than the 1,250 required by law. However, on June 24, 2016, four days before the scheduled primary, Judge
Diamond ruled it was impossible to place Mr. Pidot’s name on the primary ballot, and he did not order a new
or different primary election date. Accordingly, no Republican primary was held on June 28, 2016 for the 3rd
Congressional District.

On June 27, 2016, Mr. Pidot commenced a proceeding in the United States District Court for New York,
Eastern District, seeking an order granting a new primary election based on alleged violations of the Equal
Protection Clause and the First Amendment (Pidot v New York State Board of Elections, 2:16-cv-03527
[EDNY]). On July 5, 2016 Mr. Pidot voluntarily discontinued this action. On July 7, 2016, Mr. Pidot took an
appeal of Judge Diamond’s June 24, 2016 Order insofar as it did not order him on the ballot or provide a new
primary election. The Appellate Division scheduled oral argument on the appeal for July 19, 2016 and issued
an order on July 21%, upholding the trial court decision and declining to order a new primary election.

A proceeding in the United States District Court for the Northern District of New York seeking similar relief
was filed on July 13,2016. Among other things, Pidot sought in that action a primary date to be ordered
compliant with the MOVE Act or alternatively to require the State Board of Elections to seek a hardship
exemption pursuant to 52 USC § 20302 (g)(2)(B)(ii) with reasonable accommodations for the mailing and
counting of overseas and military ballots.

On August 17, 2016, the court ordered a Republican Party Primary to be held for New York's 3'4
Congressional District “with a ballot that names both Jack Martins and Philip Pidot as candidates on October
6, 2016”. The Court further ordered that the State Board of Elections “shall seek a ‘hardship exemption’
pursuant to 52 USC 20302 (g) (2) (B) (ii) from UOCAVA’s 45 day requirement with regard to the November
2016 general election.”

{] Order of Judge Gary Sharpe, Northern District of New York (United States of America v. State of New York et al,
Case 1:10-cv-01214 Document 88, dated October 29, 2015).
Page 7 of 9


5. Type of hardship claimed (check one):
© (g)(2)(B)(i) Undue hardship due to a late primary.
(g)(2)(B) (ii) Undue hardship due to a legal challenge

O (g)(2)(B)(iii) Undue hardship caused by a State constitutional prohibition.

6. Please indicate the location in package that identifies your plan to resolve the problem:
Appendix A

7. Please indicate the location in the package that contains the section in the comprehensive plan identifying
the State’s explanation for the necessity of the waiver request.

Appendix B
8. On what date(s) will the State require ballots to be available and sent?

On or before September 24, 2016 (Federal Ballot Containing Offices of United States President and
United States Senator)

October 8, 2016 - October 15, 2016 (The ballot for Member of Congress only for the 3"
Congressional District will, if the primary election produces a clear winner, be transmitted on before October
8, 2016. If the result is close, the latest date of transmittal will be October 15, 2016.)

9, Please indicate the location in the package that contains the section in the comprehensive plan identifying
how the State plans to provide sufficient time for UOCAVA voters, who have timely submitted an absentee
ballot request, to receive, mark, and return their ballots in time to have those ballots counted.

Appendix C

10. If included, indicate the location in the package that contains the section in the comprehensive plan
identifying how the State plans to resolve the underlying issue prior to the next election for Federal office,
including steps already taken, to be taken, timelines, and supporting documentation.

N/A

11. If requesting a (g)(2)(B)(i) and/or (g)(2)(B)(iii) waiver, explain why there has not been a resolution of
this issue(s) between enactment of the MOVE Act and the date of this waiver request.

N/A

Page 2 of 9


Appendix A: Comprehensive Plan Summary

As a result of a federal court order, a Republican Primary for the 3" Congressional District will be held on
October 6'*, 2016. As the 45 day transmission deadline for the November 8, 2016 General Election is
September 24, 2016, there is no way to transmit General Election Ballots containing the 3" Congressional
District contest by the federal statutorily required deadline. As such, New York is prepared to transmit to
UOCAVA voters in the 3TM Congressional District ballots containing all other federal contests by the September
24* deadline. A separate ballot, solely containing the 3"! Congressional District contest, will be sent
subsequent to the statutory deadline, hence the need for this waiver application.

To ensure New York provides its UOCAVA voters in the 3" Congressional District affected by this situation
with the ability to participate fully in the electoral franchise, the State Board of Elections has already begun
and will continue to work closely with the three counties affected - Nassau, Queens and Suffolk. Our efforts
will focus on voting materials being made available as quickly as possible, communicating with the voters in
order to explain the situation in a clear and concise manner, and ensuring that uniform processes are in place
to ensure a minimum of 45 days for the roundtrip of balloting materials to and from affected voters.

Und ling the Uni fv Affected

There are presently 1,012 UOCAVA voters eligible to vote in the 3TM Congressional District contest at the
November 8, 2016 General Election. Of these voters, 663 (66%) have requested their balloting materials by
email/online and the remaining 349 (34%) have requested to receive them by postal mail. In addition, 221
(63%) of those voters requesting to receive their balloting materials by postal mail also provided an email
address on their absentee application. The table below summarizes the UOCAVA voters impacted.

Mail Email men
Military Military | Special | Military Military | Special UOCAVA
(Domestic) | (Overseas) | Federal | (Domestic) | (Overseas) | Federal
Nassau 16 2 144 29 1 350 542
Queens 14 i} 89 9 ie) 128 240
Suffolk 30 1 53 30 ie} 116 230
Totals 60 3 286 68 1 594 1,012

The table below also shows which military voters have provided an Army Post Office (APO) or Fleet Post
Office (FPO) address.

Mail Email Total
APO FPO APO FPO _| APO/FPO
Nassau i?) 2 4 1 7
Queens 2 e) 1 1 4
Suffolk 2 2 4 2 10
Totals 4 4 9 4 21

Page 3 of 9