Judge Orders Tenney Certified

By Jim Ellis

Former New York Rep. Claudia Tenney (R)

Feb. 9, 2021 — After more than three months of legal wrangling about whether former Rep. Claudia Tenney (R) defeated 116th Congress Rep. Anthony Brindisi (D-Utica) in New York’s 22nd Congressional District, a judicial ruling on Friday afternoon at last paves the way for a final certification from the New York State Board of Elections.

The NY-22 campaign is obviously the last to receive an initial final count. Another result, from the IA-2 contest that came down to a six-vote margin, is before in the House of Representatives. In this instance, the state of Iowa long ago certified that victory margin and Rep. Mariannette Miller-Meeks (R-Ottumwa) is provisionally seated pending a challenge referred to the House Administration Committee.

Returning to the New York situation, State Supreme Court of Oswego County Justice Scott DelConte early last week ordered election representatives from the eight counties, all or parts of which comprise the 22nd District, to appear in his court and certify the final totals, but he then suspended the order. This, after Brindisi appealed indicating that such a decision would cause him “irreparable harm.” Justice DelConte responded, saying he would take the motion under advisement until Feb. 5.

With his new ruling, Justice DelConte re-affirmed the previous order for the counties to send their certified totals to the state Board of Elections. The aggregate electoral sum will reflect a Tenney victory margin of 109 votes. The initial public count on Election Night ended with her leading by over 28,000 votes, which would drop to her trailing by just 14 tallies when the outstanding mail ballots from several counties were added. The post-election tabulation that included late-arriving votes from overseas and other ancillary ballots was then adjusted into a Tenney 12-vote edge and later 29, before yielding to an unofficial preliminary final count of a 122-vote spread.

Now, after the Justice has ruled on all contested votes – more than 600 after the two parties agreed on resolutions to an additional 500-plus ballots – a Tenney victory margin of 109 votes becomes the official final tally that will be transmitted to the state.

Justice DelConte stated that the Brindisi appeal was in reality not to simply “stay his previous order,” but rather to, “ . . . stop the election and that’s a very high burden.” He further said that Brindisi would have to prove his ballot ruling appeals would have a strong chance of success at the higher court level, and that his alleged “irreparable harm” was not as significant as over 700,000 people having no representation in one House of Congress.

The Tenney team argued that a decision to certify would not cause Brindisi “irreparable harm” because the House of Representatives could unseat their client should a higher court overturn the certification decision.

Justice DelConte again emphasized that he found no evidence of election fraud throughout his thorough examination but did state that officials in seven of the district’s eight counties committed “systemic violations of state and federal election law” but a matter not for his court to adjudicate. The Justice stated that the state Board of Elections or Gov. Andrew Cuomo (D) would have to take further action in this regard.

There is also the matter of the 2,418 Oneida County residents who legally submitted their voter registration documents, but whose applications were never processed. Justice DelConte admonished the county officials for their laxity that resulted in these citizens being denied their right to vote. He previously said, however, that he does not have the power to order a new election or allow these individuals to cast their ballots post-election.

It remains to be seen if the Board of Elections’ four commissioners will take up the Oneida County registration matter. It conceivably could be the basis to order a new election since the number of individuals denied their legal right to vote certainly could alter the congressional race outcome. In 2019, for example, the North Carolina Board of Elections ordered a new election for that state’s 9th Congressional District over voter fraud charges.

Additionally, Brindisi is already appealing many of the current court rulings. Therefore, if previous practice is followed, and assuming the Board of Elections issues Tenney the final certification, she will be provisionally seated and serve at least until all appeals are affirmed or denied.

Even after this seat is finally filled for the 117th Congress, reapportionment suggests that New York State will lose at least one seat and is apparently on the cusp of losing a second. Six of the top 10 districts requiring more population come from the Upstate including the top three seats. Since the 22nd District looks to be the second-most under-populated seat among all current 27 New York districts, this CD, with its current problems and sitting in the middle of the Upstate region, could be a prime candidate for elimination.

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