Ali Najmi is a leading election law attorney in New York. Mr. Najmi is experienced in representing candidates for public office with ballot access matters and has represented candidates for citywide, state, and local office before the New York City Board of Elections. Mr. Najmi is an active member of the New York City Bar Association’s Election Law Committee.
Mr. Najmi has successfully litigated election law matters in state and federal courts.
Some of Mr. Najmi’s recent election law victories on behalf of candidates have been featured in the press:
Mr. Najmi has also represented voters in voting rights litigation along with attorneys Remy Green and Jonathan Wallace. Together they obtained a statewide federal injunction against the State Board of Elections requiring ballots without postmarks to be counted in the June 2020 primary in the matter of Gallagher, et. al. v. New York State Board of Elections. Mr. Najmi and his team also obtained a national federal injunction against the USPS requiring election mail to be handled expeditiously and for performance metrics to increase in the run up to the 2020 Presidential election in the matter of Jones, et.al. v. United Stated Postal Service. Summaries of these decisions can be found below.
Gallagher v. N.Y. State Bd. Of Elections Aug 3, 2020
The COVID-19 pandemic presented unprecedented obstacles for the 2020 election year. In New York, more than 1.2 million absentee ballots were cast statewide, including approximately 414,582 cast in New York City. New York Election Law § 8-412 required absentee ballots to be postmarked on or before Election Day to be counted. However, absentee ballots could be counted if they were received by a Board of Elections before the close of the polls on June 23rd, or if the ballots were postmarked June 23rd or earlier, and were received before or on June 30th. In New York City, thousands of absentee ballots mailed on June 23rd that were not postmarked and arrived after June 23rd were invalidated by the Board of Elections and these votes were not counted. Brooklyn specifically had significantly more absentee ballots invalidated than any other borough.
In this action, fourteen New York City voters, and four candidates on the ballot in New York’s June 23, 2020, primary elections sued the Board of Elections on First and Fourteenth Amendment violation grounds. Alleged burdens on voters’ First and Fourteenth Amendment rights are subject to the Anderson-Burdick test. This first requires the court to consider the weight of the burden on the voter; then, identify the State’s interests used to justify the burden; and lastly, determine the legitimacy and strength of each of those interests and consider if those interests make it necessary to burden the Plaintiff’s rights. When voter rights are subject to “severe” restrictions, those restrictions must be analyzed under strict scrutiny, and must be “narrowly drawn to advance a state interest of compelling importance.”
The District Court for the Southern District of New York found that the burden on voters was exceptionally severe where large numbers of ballots were invalidated based on circumstances entirely out of the voters’ control. The State argued that its legitimate interest was in ensuring all ballots were cast before the polls closed on Election Day. However, the court found the postmark requirement was not narrowly drawn to advance that interest, and instead overinclusive. As per USPS’s two-day delivery standard, the Court confidently concluded that ballots received by the NYCBOE on June 25 were mailed on June 23 or earlier. Enforcing the postmark restriction on those ballots would not advance the state’s interest but would result in valid votes being disqualified. The State also argued that Plaintiffs failed to prove intentional discrimination, yet the Anderson-Burdick test does not consider intent or purpose. Additionally, in the landmark case of Bush v. Gore, The Supreme Court held that an equal protection violation occurs when a state’s vote counting procedures lacked “minimum procedures necessary to protect the fundamental right of each voter” and made no mention of any required intent on behalf of the government. Clearly § 8-412 would deprive some voters of their rights under the Constitution and statewide action was appropriate to maintain equal protection guarantees. The relief for plaintiffs came in the form of a statewide injunction ordering all local boards of elections to count all otherwise valid absentee ballots that were received by June 24th, 2020, regardless of postmarking, and those received by June 25th, so long as they were not postmarked later than June 23rd, 2020
Jones v. United States Postal Service September 21, 2020
The United States Postal Service has become an integral part of our elections and has affirmatively held itself out as a partner to state and local election authorities. Our 2020 General election processes were complicated by the COVID-19 Pandemic as well as inconsistent policy changes on behalf of the USPS. With the recent appointment of Louis DeJoy as Postmaster General, a June 14 PowerPoint detailing Dejoy’s expectations included:
- A prohibition on overtime;
- A ban on late or extra trips even if deliveries were not fully completed;
- A hiring freeze;
- Widespread equipment reduction, removal, or destruction; and
- A policy titled “Expedition to Street/Afternoon Sortation” (“ESAS”) which required carriers to spend minimal time in the office before departing, and prohibited carriers from sorting mail until the afternoon when they returned.
Due to the COVID-19 Pandemic, more mail-in and absentee ballots were expected than ever before, and these policy changes would seriously undermine the integrity of our election. Mondaire Jones, then a candidate for New York’s 17th Congressional District, and others similarly situated sued the USPS in the Southern District of New York.
Testimony from USPS employees and officials detailed contradicting information as to how the policy changes were implemented if they were implemented at all. A lack of uniform standards as to how the USPS would handle election mail would be harmful to our election processes. This could potentially deprive voters of their First Amendment right to vote as well as their Fifth Amendment right to have their votes counted equally. In Considering the First Amendment claims, the court considered the facts under both “Strict” and “Intermediate Scrutiny”. The court found that the State’s financial interest were not sufficient under either tier of scrutiny, to potentially hinder voting rights. To consider Plaintiffs’ Fifth Amendment claims, the court relied on Bush v. Gore to determine that plaintiffs demonstrated a substantial likelihood of success on their equal protection claim. “An equal protection violation occurs when arbitrary disparities in voting mechanisms make it less likely that voters in certain areas will cast votes that count.” Here, just as in Bush v. Gore, the “absence of specific standards” facilitates the “arbitrary and disparate treatment [of] voters” and ultimately, the unequal weighting of votes across geographic areas.
The court found that an injunction here ordering the USPS was appropriate. USPS was ordered to:
- Pre-approve all overtime requests;
- Treat all Election Mail as First-Class Mail or Priority Mail Express to the extent that excess capacity permits;
- Provide the court a list of all USPS recommended practices concerning the treatment of Election Mail that are not binding policies;
- Provide the court and Plaintiffs the same weekly update USPS is providing to congress as well as separate, unmerged reports; and
- Most importantly, submit to the Court and Plaintiffs a proposed memorandum to all USPS managerial staff. The purpose of this “Guidance Memorandum” is to provide uniform information about all policy requirements to all USPS facilities and employees.