The Next Step in NY-22

New York’s Congressional Districts

By Jim Ellis

Feb. 3, 2021 — Late yesterday, by judicial order, the seven affected counties in New York’s 22nd Congressional District finalized and completed the verification process of their final vote totals, but that doesn’t end the process.

The seven entities with the challenged ballots and Tioga County’s long ago completed results will then be sent to the State Board of Elections for final certification. The process, however, could conceivably endure further delays in the capital city of Albany.

First, 116th Congress incumbent Anthony Brindisi (D-Utica), who now will assuredly finish behind former US Rep. Claudia Tenney (R) in the final 2020 election count, has already filed an appeal to State Supreme Court of Oswego County Justice Scott DelConte’s ruling, asking for a hand recount of all ballots.

Second, as part of the 23-page judicial ruling directing the counties as to which votes must be added and subtracted from their counts because of eligibility rules, Justice DelConte indicated that his ruling is somewhat limited.

The Justice said he does not have the power either to order a new election or allow the 2,418 people who registered to vote before the Oneida County deadline but were denied ballots because election officials did not process their forms to vote post-election. Before the State Board of Elections, however, the final action could result in a different conclusion.

The SBoE is comprised of two appointed Democrats and a pair of Republicans. The panel is co-chaired by Democratic appointee Douglas Kellner and Republican choice Peter Kosinski. Nominees for the two co-chair positions are put forth to the governor from the partisan legislative leaders from both lawmaking chambers.

The remaining two appointments come as recommendations from the chairmen of the two major political parties. The Democratic Party nominee is Andrew Spano while the new GOP representative is former state Assemblyman Tony Casale, who served on the Assembly Election Law Committee for 17 years before leaving the legislature for a position in the former Pataki Administration.

Controversy arose regarding Casale’s appointment last September. His predecessor resigned the position, leaving the Democrats with a 2-1 margin on the panel. Despite having recommendations, Gov. Andrew Cuomo (D) was delaying making an appointment, thus leading to Republican Kosinski ceasing to attend meetings in order to prevent a quorum. Gov. Cuomo then responded with the Casale appointment.

Within this atmosphere, the Board will later this week have the task of deciding whether to officially certify the long-disputed NY-22 congressional election that we covered in detail in yesterday’s update. This would mean at least one Democratic member would have to support certifying Republican Tenney as the winner if they are to follow the official district total.

It appears they have several action options, however. They could simply certify Tenney as the winner, or conceivably delay doing so until the Appellate Court rules on Brindisi’s complaint regarding a hand re-count.

They might also vote to order a new election citing the 2,418 Oneida County individuals who properly registered but were denied receiving a ballot. When brought to Justice DelConte’s attention almost two months after the election, he asked the Oneida County election officials why these 2,418 people were not registered when they met the legal qualifications and submitted their forms prior to the registration deadline. The officials responded that the staff was too busy with other duties to complete the registration procedure, and the Justice publicly admonished them.

Obviously, with a margin between the two candidates of 122 votes more or less, depending upon the addition and subtraction of an aggregate 92 ballots yesterday, this many legally qualified voters who were denied ballots could clearly have made a difference.

The third option would be to deadlock with a 2-2 vote to certify. Should this happen, jurisdiction would likely move to the US House of Representatives. At this point, the House would be tasked with declaring the seat vacant since the state did not produce a certified winner. If this were to happen, a special election would then be called under New York election law. The two parties would see their respective county chairs deciding upon a nominee, and almost assuredly those individuals would be Tenney and Brindisi. The special election between the two would then proceed.

The last Board of Elections to order a new election actually happened in the last Congress when vote fraud charges led to the North Carolina Board not certifying a winner in that state’s 9th Congressional District. The special election was held almost a year after the original election, which resulted in Rep. Dan Bishop’s (R-Charlotte) election.

There is precedence for a congressional body declaring a seat vacant based upon a disputed election. This happened in the Senate back in 1974 when New Hampshire candidates John Durkin (D) and Louis Wyman (R) were separated by just two votes statewide after several recounts produced different winners and totals. The official two-vote result proved to be the closest Senate election in American history. The Senate eventually declared the seat officially vacant and a new special election was conducted.

While the NY-22 final count officially finalized yesterday after three months of work, still more machinations are ahead as the New York judicial and administrative officials continue in their efforts to determine a winner of this tight congressional election.

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