NY-22: Judge Sets-Up What Could Be Final Stages In Drawn Out Race
The Oswego County Supreme Court Justice presiding over ballot review in New York’s 22nd Congressional District ordered Friday that the eight county Boards of Elections must certify their vote counts by the end of the day on Tuesday, Feb. 2.
The decision was delivered alongside rulings on 17 different issues debated by lawyers for Republican Claudia Tenney and Democrat Anthony Brindisi over the course of the lawsuit, which is still ongoing nearly three months after Election Day.
If all goes according to the schedule laid out by Justice Scott DelConte, voters in the district can expect to have a representative in Congress next week at the earliest.
The race garnered national attention, including from former President Donald Trump. At a rally in Georgia on Jan. 5, before the runoff Senate elections there, Trump complained, without evidence, of election fraud in New York’s 22nd Congressional District. Meanwhile, Tenney’s lawyers argued that there was a single case of fraud.
In his ruling, DelConte rejected Tenney’s claims that two Oneida County ballots were fraudulently cast, but found, however, that the two ballots in question were submitted by the same voter. The justice wrote that there is nothing that indicates the circumstance did not result from a mistake, ignorance or upon the misdirection of a poll worker since there was nothing marked on the face of the ballot to indicate which one was spoiled, if any. However, without clear evidence that one was spoiled and the other was not, neither ballot can be counted.
The justice added that Tenney’s argument that there was no verified chain of custody for 92 absentee ballots in Madison County was both “legally and factually incorrect.” Each of the 92 ballots was timely delivered to a Madison County polling site on Election Day and are to be counted in the final canvass on Monday.
In total, the court affirmed 470 of the candidates’ challenges and overturned another 139. 1,188 challenges were initially made by the candidates at the canvasses, but DelConte wrote that 533 were withdrawn during the hearing, and three were not preserved for judicial review.
With the exception of challenges heard at the canvass and correction of 1,097 remanded ballots in Oneida County, the justice said that the record is closed. A combined 373 additional votes were added to the candidates’ unofficial vote counts on Friday as a result of the Oneida County canvass. The court ordered the action after the Board of Elections failed to process around 2,400 voter registration applications that voters delivered to the Department of Motor Vehicles and subsequently rejected affidavit ballots submitted by those voters on the grounds that they were not registered.
A ballot rejected on similar grounds will be remanded to the Broome County Board of Elections for correction, according to Friday’s decision.
While DelConte stated on multiple occasions that his role was to ensure every voter’s constitutional right is protected, he writes that “the Court’s role in this proceeding is to preserve the integrity of the electoral system by
ensuring that the laws governing elections are strictly and uniformly applied,” even where that law does not favor of the voter. The justice ruled that 51 absentee ballots forwarded by various boards of elections statewide to the proper local board of elections cannot be counted on the basis that the envelopes in which they were enclosed when forwarded were not postmarked by election day, Nov. 3, 2020.
DelConte wrote that absentee ballots turned in to polling sites in counties separate from the one to which it belongs are still valid, they must be postmarked by the state’s Nov. 3 deadline.
“Although this may be a harsh result, particularly given the instructions on the absentee ballot envelopes used in this election, this Court has no authority to disregard the strict deadlines for the submissions and receipts of ballots under the Election Law,” DelConte conceded.
Any affidavit ballot, meanwhile, cast at a polling location in the wrong county cannot be counted, nor can a ballot cast at the wrong polling site. The justice wrote that the New York legislature passed reforms that appear to deal with the errors in question more leniently. A 2019 amendment to New York’s Election Law, for instance, permits the transfer of voter registrations across county lines. Despite this change, the law still codifies that individuals cast their ballots at the correct polling site—a rule known as “wrong church, wrong pew.” A combined 148 ballots were ruled null on these grounds.
During final arguments on Jan. 22, lawyers for Brindisi argued that voters who appear on state registration records as “active,” or eligible to vote, but “purged,” or no longer eligible to vote, on local records should be viewed and treated in accordance with the status on state records only, stating that they are the most accurate. The court, however, contended that “Although this rule may at times be unfair,” it has no jurisdiction to change the status of purged voters or “reregister” them, and therefore ballots from 85 “purged” voters could not be counted.
The court ordered Tioga County, which did not have any challenged ballots, to certify its election results immediately. The rest of the Boards of the Elections will return to the Oswego County court on Monday for a final canvass of certain affidavit and absentee ballots that the justice said were never opened because of ministerial errors on the part of the Boards. DelConte will rule on any new challenges in-person during the canvass.