New York Supreme Court Judge Orders Recount in Brindisi-Tenney House Race

December 8, 2020 by Dan McCue

A New York State Supreme Court judge ordered election officials Tuesday to recount some of the approximately 60,000 absentee ballots cast in the still undecided House race between incumbent Rep. Anthony Brindisi and his Republican challenger, Claudia Tenney.

The ruling by Justice Scott DelConte is a blow to Tenney, whose lawyers had asked the court to order the eight counties in the district to immediately certify her as the winner due to her 12 vote lead in a race where more than 318,000 were cast.

“This Court has no authority to, and will not, count votes, interfere with lawful canvassing, or declare the winner,” DelConte wrote in a 20-page order.

Further, he said, fulfilling Tenney’s request would require him to “ignore multiple errors by the respondent Boards of Elections, disregard proper challenges to invalid ballots that were counted and valid ballots that were not counted … and ignore hundreds of ballots that were never canvassed in the first place.”

Instead the judge ordered each county Board of Elections in New York 22nd Congressional District to recheck numerical errors that have been revealed in the weeks since the election, and to review at least 809 absentee and affidavit ballots disputed by the two campaigns.

Where it’s not possible to correct the errors, the counties must go back and conduct a manual hand count of any ballot in question, DelConte said.

The total number of ballots that will ultimately have to be counted by hand will be determined by each county.

“This decision is a win for the people of the 22nd District,” Brindisi said in a statement provided to The Well News.

“As I’ve said all along, the voters of this community deserve to have their voices heard. This margin is too small and the stakes too high to rush to judgement,” he continued. “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.

“As this process continues to play out, I hope everyone, including those who did not vote for me, and my opponent will do what is best for our country and protect the integrity of our election,” Brindisi said. “I am hopeful that I will come out on top and be able to continue to work with both parties and stand up to anyone on behalf of all of New York’s 22nd district.”

DelConte’s order goes into great detail on the election, the flaws in it, and subsequent developments that sometimes strain the imagination — like when sticky notes that had been affixed to rejected ballots fell off before the ballots could be presented to the court, or when 55 uncounted ballots were found in a box in one county, and then 12 others were found elsewhere.

“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,” the judge wrote. “Nor is there any evidence that the Boards’ failures and errors were a result of the pandemic, recent amendments to the Election Law, or a strain upon the Boards of Elections’ capacity and resources.”

Instead, based on the evidence and testimony submitted by the parties, it appears seven of the eight boards of election in the congressional district “failed to comply with the plain and unambiguous mandates governing the performance of their duties with respect to the canvassing of affidavit, absentee, military and special ballots, including the preservation of challenges to rulings by the Boards on objections, the sending of notices to cure, and the canvassing of affidavit ballots.”

DelConte did not rule today on any of the hundreds of absentee and affidavit ballots challenged by the Brindisi and Tenney campaigns.

He blamed the failures of county election officials in the 22nd District, who in some cases lost information about the disputed votes. For instance, he noted that Madison County officials failed to follow a provision of the election law that required details to be written in ink on the back of disputed ballots.

This failure and those in other counties in the congressional district “have frustrated the candidates, and prejudiced their rights to meaningful judicial review of the boards’ actions on the challenged ballots,” DelConte wrote.

“In particular, this court cannot rule upon the validity of those ballots without evidence establishing what candidate had challenged the board’s ruling on a particular ballot’s validity,” he added.

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