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NY-22 becoming a difficult lesson in voter rights, as candidates are 12 ballots apart

John Minchillo / Associated Press

There’s still no winner in New York’s 22nd Congressional district, where Republican Claudia Tenney and Democratic Incumbent Anthony Brindisi are vying for the last undecided House seat. This week, county Boards of Elections are recounting some of the race’s ballots. The partial canvasses were ordered by an Oswego County Supreme Court justice after the Boards’ clerical errors made judicial review of hundreds of ballots challenged by the candidates impossible.

It’s unclear just how many hundreds of challenge ballots there are, but with only 12 votes separating the candidates, the court’s rulings on them might determine the race’s outcome.

Still, between the Boards’ errors and the countless challenges, some of which seek to disqualify votes, voting rights experts warn of a number of ways the processes of this election can disenfranchise individual voters.

Clerical failures

In his decision issued early last week, Justice Scott DelConte made clear that there was no evidence nor allegation of fraud in this race. Instead, DelConte said the Boards’ failings were the direct result of carelessness, or the “inadvertent failure to follow the mandate of statute and case law.”

Perry Grossman, a senior staff attorney with the New York Civil Liberties Union’s Voting Rights Project, said, however unintentional, the Boards’ carelessness endangers voters’ constitutional rights.

“Once a voter puts their ballot in the care of the Board of Elections, they should be able to trust that that ballot is going to get handled correctly,” Grossman said. “If it isn’t, certainly they shouldn’t be denied their right through no fault of their own.”

DelConte said in his decision that the ultimate role of the court is to “ensure that every voter’s right is safeguarded.” The only proper action, he continued, would be to direct the Boards to correct their errors and properly canvass—or recanvass, where necessary—each and every ballot.

According to the justice, seven of the eight counties in the district failed to follow guidelines issued by state election law for canvassing—or the counting and validating ballots—and recording objections to them.

Challenges to a ballot, for instance, should be written in ink on the face of the ballot. Meanwhile, Oneida County’s election officials partially noted its challenges on sticky notes. The justice said they failed to clearly identify the challenging candidate and their grounds for objection, causing problems when officials attempted to decipher which votes were counted.

Those ministerial problems could inadvertently lead to voter suppression, but Grossman stressed candidates’ objections to valid ballots can, too.

“Because we still have this process on the backend where candidates are able to try and knock out ballots of people who are qualified to vote and who have cast ballots where we can discern their intent,” Grossman explained.

Skyrocketing absentees

Many of the ballots under scrutiny are absentee or affidavit ballots sent in by mail. Typically, less than five percent of New Yorkers vote by absentee ballot. But numbers soared this election; absentee ballots were returned by 14 percent of all registered voters in the state.

Danielle Lang, co-director of the Voting Rights program at the Campaign Legal Center, said the reforms passed this summer positively expanded access to mail-in voting because of the pandemic. But doing so did not come without complications.

“Election officials that were not necessarily prepared for that skyrocketing number of absentee ballots and, quite frankly, the possibility of bad actors over-challenging ballots at the backend just simply because they think the vote count will favor them one way or another if they can get absentee ballots thrown out,” Lang said.

While New York State Election Law gives Boards of Elections guidance on canvassing absentee ballots, Lang said the state’s processes are not nearly as robust as in other states. That created challenges this election cycle, when Boards of Elections confronted a volume of absentee ballots that could, in some cases, take three times longer than usual to canvass.

A lack of organization and meticulous processes, Lang said, made the errors on the part of overwhelmed election officials predictable.

Objecting along party lines

Credit Brindisi/Tenney Campaigns
Democratic Incumbent Anthony Brindisi (l) and Republican challenger Claudia Tenney were 12 votes apart as of the last count.

After some parts of the state saw high rates of ballot rejection during the primary elections, additional uniform guidance was issued. But campaign representatives for Brindisi and Tenney still challenged hundreds of ballots combined, and doing so, for some, with the intent of disqualifying that ballot.

Grossman said the candidates’ basis for objecting ballots largely falls along party lines.

“The Republican party, for the most part, appears to have tried to prevent qualified voters from casting valid ballots,” Grossman said. “The Democratic party has seemed mostly to have tried to ensure voters are able to cast valid ballots.”

When making their case before the court earlier this month, the Tenney campaign argued that the justice should direct county Boards of Elections to certify their final votes tallies, even with challenged ballots outstanding. Representatives for Brindisi, meanwhile, asked that the court target only certain counties, and order those Boards to correct their errors via a partial recount to quicken the process.

DelConte took issue with both arguments, stating in his decision that the court cannot “place expediency above the Boards’ compliance with their statutory duties.” Both candidates, he wrote, argued for solutions that would best benefit their campaign, while the court’s obligation is to safeguard every voter’s ballot.

Several other Republican candidates filed similar lawsuits with ballot challenges, and a rush to certification, at its crux. Upstate Representatives John Katko and Tom Reed both filed lawsuits nearly identical to Tenney’s prior to winning their races. In their respective petition, each requested judicial supervision over potentially challenged ballots.

Designing fair elections

When reforming the state’s election system, Lang said New York legislators should ensure it’s designed to best reflect the will of the voters, and prevent disenfranchisement, at every stage.

“When we talk about voting rights, we talk about access—the ability to cast a ballot—but we also talk about the right to have that ballot counted,” Lang said. “Sometimes that gets a little bit lost.”

But Grossman said that fair elections take a lot of time, even without lengthy lawsuits and challenges. That way, election officials can ensure it is done right.

“It’s important for people to have patience with election results because making sure results are accurately counted is by far the most important thing,” he said. “Certainly it’s a lot more important than having fast election results.”

The Boards of Elections are expected to finish the recounts by the end of Friday. They will meet with the candidates and DelConte for a virtual meeting that same afternoon.

In an order issued on Wednesday, the justice asked that the Boards have the number of challenged ballots that were corrected or recanvassed, the total number of ballots recanvassed, the total number of challenges and updated vote tallies ready to present to the court Friday.

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