A judge has ruled that the county boards of elections in the 22nd Congressional District must correct all errors, past objections, and recanvass the ballots, when necessary, in the race between Democratic incumbent Rep. Anthony Brindisi and Republican challenger Claudia Tenney. State Supreme Court Justice Scott DelConte wrote in his order that seven boards of elections had “careless or inadvertent failures” in canvassing affidavit and absentee ballots, and preserving challenges to those ballots.
DelConte rejected Tenney’s motion to have the election certified as it stands today, with her ahead by maybe 12 votes. He also didn’t go along with Brindisi’s motion to only correct certain canvassing errors. Instead, DelConte ruled that the boards of elections must correct all canvassing errors and recanvass ballots, in some cases.
In one of the most closely contested races in the country, Tenney led by more than 28,000 votes on election night. But with more than 60,000 absentee, affidavit and military ballots, that lead is now razor thin.
Problems began when the court held hearings on the ballots challenged by the two parties. First, the Oswego County Board of Elections did not properly notate the challenges on the ballots, in pen, which is required by law. Instead, they used “post-it” or “sticky” notes, which failed to identify the candidate making the challenge, and the grounds for making the objection.
The Oneida County Board of Elections also used sticky notes. Some went missing and made it impossible to know if the ballots were counted or not. Also, they failed to include 1,500 affidavit ballots, rejected by the Board of Elections, in its formal canvassing process, denying the campaigns an opportunity to object to the Board’s refusal to cast those ballots.
In Madison County, challenged ballots were organized on an incomplete and “hastily created” spreadsheet.
All that was on just the first day of hearings.
Next, it was discovered Herkimer County also used incomplete sticky notes. A miscalculation discovered later in Herkimer County, would ultimately give Tenney her current lead. In Broome County, hundreds of affidavit ballots were not properly canvassed, and there were problems recording and ruling on candidate challenges and objections. Similar problems occurred in Chenango County, including 12 absentee ballots “inexplicably found in a drawer." Days later, 55 uncanvassed early voting ballots were also discovered.
Cortland County had 100 affidavit ballots that were administratively rejected that the campaigns never knew about, until court.
No errors were found in Tioga County.
For the Oswego, Oneida, Madison, Herkimer, Chenango, Broome and Cortland County Boards of Elections, Judge DelConte writes that they failed to comply with election law. He emphasized that there’s no evidence or allegation of fraud before the court. But the problems being experienced now are a direct result of the failures, he said, of those boards of elections. The court can’t rule on the validity of challenged ballots without evidence showing which candidate made the challenge and why, nor can it rule on the validity of hundreds of ballots that were never canvassed in the first place.
DelConte will hold his next conference with counsel on Friday, December, 18.
Luke Perry, director of the Utica College Center of Public Affairs and Election Research, said DelConte's ruling was painful to read.
“One takeaway from the ruling is that these seven counties really need to more closely examine how they select their election commissioners, and make sure the people selected are up for the job,” Perry said.
It could be weeks before there’s a resolution. An employee at the Oneida County Board of Elections has tested positive for COVID-19, which may have exposed the entire office.
