NY-22 Vote on Brink of Certification

By Jim Ellis

Former New York Rep. Claudia Tenney (R)

Feb. 2, 2021 — After being suspended in political limbo for three months after Upstate New York voters cast their ballots, it appears that former Rep. Claudia Tenney (R) is on the threshold of being declared the winner of the disputed NY-22 contest.

State Supreme Court of Oswego County Justice Scott DelConte issued his ruling late Friday after weeks of hearings regarding disputes over more than 1,000 contested ballots and 2,100-plus individuals who registered to vote in a timely manner but whose documentation were not properly processed.

Justice DelConte released a 23-page ruling detailing his findings. As a result, it appears his acceptance or rejection of various ballots and a decision governing the mis-applied voter registrations allow Tenney to increase her lead from 29 votes to 122.

The justice first ordered Tioga County’s election officials, the only entity from the eight-county district that had no issues, to immediately certify their final totals. From the remaining seven counties with outstanding ballots, those election officials were ordered to appear in court Monday to count or remove votes at the Justice’s direction.

Once completed, the DelConte ruling ordered the counties to then implement a final canvass and certify their results by mid-day today. At this point, the final results from all eight counties will be sent to the State Elections Board in Albany for final certification.

In summary, the original totals found the two candidates, Tenney and 116th Congress incumbent Anthony Brindisi (D-Utica), separated by just 12 votes from the 317,727 ballots cast: 155,492 to 155,480, respectively, and including 6,755 votes for the Libertarian candidate. Through the ballot challenge period, we saw Brindisi moving ahead by 14 votes, and then back to Tenney’s most often reported 29-vote edge. It was only through Friday’s ruling when her advantage expanded to 122.

In all, 1,118 ballots were challenged. A total of 533 of those were withdrawn through agreement between the two campaigns, and after the two camps had resolved challenges to an additional 43 ballots. Three more ballots were “not preserved for judicial review.” Of the 609 challenges the justice considered, 470 were admitted to the count while 139 were rejected and ordered removed.

Since most of the disputed ballots were already included in the adjusted district total throughout the long process, yesterday’s execution of admissions and subtractions of votes will apparently not be enough to throw the election to Brindisi even if all the changes go his way.

The justice has ordered the various counties to add 44 ballots to the count while removing another 48 votes. Seeing Brindisi as the beneficiary of every one of these 92 votes — an unlikely scenario — would still leave him 30 tallies short of Tenney’s final total. Therefore, it appears that Tenney will be certified the race winner later in the week.

Justice DelConte used previous New York case law to explain why he was rejecting ballots that were cast from individuals voting in the incorrect polling place, who had been purged from the voter rolls, included more than one ballot in the envelope (all must be rejected), and those who failed to submit all required information on the ballot envelope.

He allowed ballots that were marked but did not obfuscate the vote cast in the 22nd Congressional District race, along with those that could be rejected in other contests but whose vote was definitive for CD-22.

Brindisi is already appealing some of Justice DelConte’s rulings, so this long post-election drama will continue. If precedent is followed, and assuming the state declares Tenney the official winner, she will be seated provisionally and sworn into office until all contested matters are finally determined.

This is the manner in which the House handled the IA-2 situation where Democrat Rita Hart is challenging Republican Rep. Mariannette Miller-Meek’s (R-Ottumwa) six-vote victory in Iowa. The new House Administration Committee has yet to consider the 22-vote dispute that Hart is bringing them for relief, however.

If both Tenney and Miller-Meeks win all of the legal challenges and keep their seats, and both parties win the respective upcoming special elections as projected (Democrats to keep, LA-2, NM-1, and OH-11; Republicans winning LA-5), the final House partisan division will break 222-213 in the Democrats’ favor.

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