NY-22: Judge Rules

By Jim Ellis

Former US Rep. Claudia Tenney (R) leads freshman Rep. Anthony Brindisi (D-Utica) by just 12 votes out of 317,727 tabulated ballots.

Dec. 10, 2020 — The only House race still uncertified or undecided will remain in political limbo for at least a couple of more weeks. Tuesday, in a 20-page ruling, state Supreme Court Justice Scott DelConte returned the contested race back to the counties to properly complete the canvass process in order to ensure that all eligible votes are counted and recorded.

At this point, former US Rep. Claudia Tenney (R) leads freshman Rep. Anthony Brindisi (D-Utica) by just 12 votes of 317,727 tabulated ballots.

At one point, Tenney led the count by 28,422 votes, but that lead all but disappeared when the 60,000-plus mail votes were recorded. At one point, Brindisi took a 13-vote lead, but a discovered mistaken count in Herkimer County changed the outcome to give Tenney her present 12-vote edge.

In New York, the local district court — or superior court as some states label it — is referred to as a Supreme Court. Justice DelConte has assumed jurisdiction for the case and determined that seven of the congressional district’s eight counties did not follow New York election law or procedure as to how county personnel handled many of the contested ballots and those that are seemingly uncounted.

Additionally, the judge denied both Tenney’s motion to certify the current count and Rep. Brindisi’s motion to recount only some of the counties and precincts. Justice DelConte wrote that Tenney’s motion ignored the clear fact that a bevy of ballots remain uncounted and recorded, and Brindisi only wants to adjust the areas that are favorable to him.

Only Tioga County correctly completed the counting and canvass process and is therefore not involved in this post-election adjustment period. Personnel in the other seven counties, however, at least failed to adhere to New York law that requires a written explanation on the invalid ballot itself as to why it was rejected and who made the challenge. Instead, many contested ballots were affixed with post-it notes, many of which have become dislodged and lost.

Furthermore, the judge indicated that the seven counties failed to properly handle the affidavit votes, often called provisional ballots, in other places. The affidavit votes, as spelled out in New York election law, must have an explanation as to why an inactive voter is casting a ballot. Such reasons could be a change of address, not voting for a number of consecutive elections, moving to the area without registering to vote in time, or a host of other similar clarifications.

It’s possible as many as 600-800 more votes than the 809 ballots the two candidates are contesting actually remain unresolved. The former group of ballots were either misplaced, not counted and recorded, or only partially counted.

The judge’s ruling contained 10 separate orders to the seven counties, and they first conduct a complete inspection of all areas under their control to ensure that every submitted ballot is accounted for and recorded.

Additionally, the counties were to ensure that all ballots were retrieved and safeguarded by noon yesterday and that:

  • all errors on previously challenged ballots be corrected;
  • all mailed, affidavit, and early votes be properly canvassed (verified);
  • all challenged ballots contain the proper markings, explanation for rejection, and the challenging individual’s name;
  • all previously uncounted, unchallenged ballots be properly handled and added to the count;
  • any affidavit, mail, or early voter not previously contacted to correct errors on their submission as proscribed by New York law be given the opportunity to file a correct ballot.

Furthermore, it was ordered that Brindisi is allowed to file crossclaims and counterclaims to the original Tenney motion; that a virtual meeting be scheduled on Dec. 18 to further report to all interested parties as to where the counties stand; and finally, that plaintiff Tenney and respondent Brindisi promptly inform the court if any county is failing to comply with any or all of the aforementioned orders.

It appears there will still be a significant time period before a winner is declared, and it is quite possible that this incredibly close contest will not be resolved before the new Congress convenes on Jan. 3, 2021.

The IA-2 race, which stands before the House Administration Committee, is the only other race with question marks. Democratic candidate Rita Hart is bringing her case to the House in order to resolve challenges and to determine if any ballots remain uncounted.

The Iowa Secretary of State certified Republican Mariannette Miller-Meeks as the winner by a just six votes, but Hart is asking the committee to review the entire counting and re-counting processes claiming that enough votes remain uncounted or improperly recorded to possibly alter the outcome.

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