BINGHAMTON, NY (WSKG) — New York’s 22nd Congressional District is the last House race in the nation still to be decided. That race has narrowed down to a razor-thin margin, with Republican Claudia Tenney leading Democratic incumbent Anthony Brindisi by just 12 votes.
Democrat Anthony Brindisi and Republican Claudia Tenney during the debate at WSKG in 2018. (WSKG Public Media)
The election battle is locked in a court case to determine if and how ballots challenged by the candidates will be decided.
The Tenney campaign requests that the Oswego County Supreme Court, which has overseen the case since Nov. 4, direct county Boards of Elections to certify their final votes. Meanwhile, there are still several hundred votes representatives for Brindisi challenged and want the court to review.
A sticky situation
Representatives for Republican Claudia Tenney and Democratic Congressman Anthony Brindisi debated the fate of several hundred disputed ballots during oral arguments held virtually on Monday. (Jillian Forstadt/WSKG)
Many of the ballots up for scrutiny were not properly recorded by county election officials. According to New York State election law 9-114, election commissioners must note all ballots candidates object to by writing the commissioner’s ruling and reason for the candidate’s challenge in ink on the ballot’s back.
Several of the eight counties in the district, however, did not adhere to these rules.
Instead, the Madison County Board of Elections used a spreadsheet to track the challenges. In Oneida County, the Board of Elections organized ballots into piles with sticky notes to differentiate ballots that had been counted and challenged from those that commissioners rejected and did not count. In transport to the Oswego court for review last month, some of those sticky notes appeared to go missing.
The Oneida County election commissioners said that made it impossible to track whether some of the votes were even counted.
During oral arguments Monday, lawyers for Brindisi said it’s now up to the court to tell counties how to fix their mistakes and correct them.
Unopened ballots in Chenango County
The court must also decide what to do with several dozen uncounted ballots Chenango County officials found last week. In a letter to the court, an attorney for the county said he advised the Board of Elections to not open 55 of those ballots and to secure them in the Board’s offices.
During the oral arguments, presiding Justice Scott DelConte also referred to 12 ballots found in a drawer that the county had not canvassed. He indicated those were separate from the 55 noted in the correspondence.
Tenney’s lawyer, Paul DerOhannesian, said that the county board already had its chance to count those ballots.
“The county had the opportunity to canvass those votes and chose not to,” he said.
He added that errors by the Boards of Elections may be too difficult, if not impossible, to fix. In his argument, DerOhannesian stated that the Brindisi campaign was obligated to ensure Boards of Elections tracked their objections correctly and failed to do so.
According to Brindisi’s lawyers, there is documented evidence of the campaign’s objections. They said the court can use it to determine which ballots were counted and which were not before ruling on them. To do so, Brindisi’s lawyers offered a partial and targeted recount, or audit, as a solution.
Another issue these arguments bring up: the extent the court’s ruling will protect voting rights. Regarding the 67 ballots uncounted in Chenango county (the 55 + another 12, news to me) Brindisi rep. Spivo:
“Voters shouldn’t be penalized because these ballots were mislaid”
— Jillian Forstadt (@jillianforstadt) December 7, 2020
The justice did not indicate on Monday how he would rule. In his questions, however, DelConte took issue with the idea of a recount that targeted only certain counties.
“Don’t I have to be consistent?” he asked Bruce Spiva, a lawyer representing Brindisi.
“The role of the court, as I see it, is making sure everyone follows the law,” the justice continued.
That might mean correcting the Boards of Elections’ past violations by ordering a full recount for the district. DelConte said he will release his decision very soon.
COVID-19 complications
It’s unclear how soon a recount, if ordered, can happen. An attorney for Oneida County announced in a letter to the court Monday that a member of the Board of Elections there tested positive for COVID-19, adding that it’s likely all employees were exposed.
If the Oneida County Health Department determines everyone on the board must quarantine, the use of any remedy the court offers may be delayed.
The new Congressional term begins on Jan. 3.