Judge Orders NY Counties in Tight House Race to Fix Missteps

Democratic Congressional candidate Anthony Brindisi in Utica, N.Y. in 2018. (AP Photo/Heather Ainsworth, File)

The winner of the ultra-tight 22nd Congressional District race in New York remained unclear Tuesday as a state judge ordered county boards of elections to fix errors made when first counting ballots.

Democratic U.S. Rep. Anthony Brindisi and his Republican challenger, former U.S. Rep. Claudia Tenney, are separated by perhaps as few as a dozen votes and remain at odds over about 1,500 disputed affidavit and absentee ballots and several dozen uncounted ballots found recently by Chenango County.

The judge denied Tenney’s request to allow counties to declare her the winner in his Tuesday order.

A string of recordkeeping problems has led to confusion over vote totals. The close race has featured counties sending in shifting and, at times, incomplete vote tallies and an issue with critical records on ballot objections being lost when the sticky notes on which they had been written lost their adhesiveness.

“To be clear, there is absolutely no evidence or even an allegation before this court of any fraud on the part of the boards or the campaigns,” State Judge Scott DelConte wrote.

He also pointed to counties that failed to alert voters of fixable issues with their ballots, record candidate’s objections to ballots, properly count affidavit ballots and rule on hundreds of ballots that candidates objected to and went uncounted.

DelConte ordered the boards of election to launch a “complete inspection” to account for every single submitted ballot. The judge also said boards of election shall count “every single” uncounted ballot.

The judge has also ordered county boards of election to fix all errors concerning disputed ballots and envelopes. He said if errors can’t be fixed, the election boards must count the ballots again and give candidates a chance to observe.

DelConte outlined a specific process for how county boards of election should handle disputed ballots, which includes writing down who made the objection, why, and how the election board ruled on the envelope.

The judge said there’s no evidence that county boards of elections’ failures are to blame on the pandemic, new tweaks to election laws or strain on capacity and resources.

“Instead, the problems experienced by the candidates and, consequently, all of the voters across the eight counties in New York’s 22nd Congressional District, were a direct result of ‘the careless or inadvertent’ failure to follow the mandate of statute and case law by the boards of elections,” he wrote.

The judge’s ruling didn’t set a deadline for counties to fix ballot issues. He scheduled a compliance conference for counsel on Dec. 18.

Brindisi’s campaign had asked the judge to order counties to audit some results and provide records about ballot objections.

Tenney has said in recent media appearances that she wants to count all votes. But her attorneys asked the judge to allow counties to certify her as the winner without counting the uncounted Chenango County ballots.

Tenney’s spokesperson said the judge rejected Brindisi’s request to only fix some errors — a push her team called “unprecedented” and “time-consuming.”

“It appears that this ruling will see to it that every legal vote is counted,” spokesperson Sean Kennedy said in a statement. “If the proper legal procedures are followed, we are confident that we will prevail and Claudia will assume office as the Congresswoman for New York’s 22nd District.”

Brindisi called DelConte’s decision a “win” for voters.

“This margin is too small and the stakes too high to rush to judgement,” Brindisi said in a statement. “We owe it to voters, our democracy, and each other to let this process move forward without attacking each other, promoting conspiracy theories, or fanning the flames of division.”

DelConte made clear that he wants to make sure votes are counted and protect voters’ rights.

“Both candidates, of course, argue for relief that tactically presents the best option for their ultimate victory,” he wrote. “However, the role of the court is not to help one side, or the other, emerge as the winner. It is, instead, to enforce the law, ensure that every voter’s right is safeguarded, and to maintain confidence in the electoral process.”

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