State Supreme Court Justice Scott DelConte has scheduled a hearing for 1 p.m. Monday in Oswego to determine the next step in sorting out who won the election a month ago for the seat in Congress representing New York’s 22nd District.
The judge will hear from legal teams representing first-term incumbent Anthony Brindisi of Utica and challenger former Republican member of Congress Claudia Tenney.
Tenney’s lawyers filed a motion this week asking DelConte to basically end the case by directing each of the eight county election boards to report certified results to the state Board of Elections. As tallied so far, Tenney would win by 12 votes.
The lawyers say it is impossible to say whether certain ballots were included in the counts the boards have provided because many ballots lack proper documentation. Oneida County election officials told the judge earlier that they put sticky notes on objected-to ballots only to have many ballots lose the notes. They cited previous court rulings in New York supporting their contention.
“The records and documentation of the canvass are not adequate for the Court to conduct any reliable, accurate, and legal review of any objections made at the canvass of ballots. There is no provision for the Court to rely on extrinsic evidence, which is subject to partisan recollection and recall, to establish the requirements for objected to ballots,” the lawyers said in their memorandum of law.
They further maintain the court’s jurisdiction is limited to reviewing only ballots with a documented objection.
Tenney’s law team is led by Paul DerOhannesian II of Albany, and Joseph Burns of Williamsville in the Buffalo area.
Brindisi’s team, led by Martin Connor of Brooklyn, contends that state election statutes and case law allow the judge to have the election boards correct mistakes made in recording objections to ballots and just which ballots have been counted. In their memorandum, the Brindisi lawyers cite a 1925 Oneida County case where the court held the court has jurisdiction even if the statement of canvass listed no void or challenged ballots but where witnesses established that votes were challenged.
Brindisi’s team wants the judge to order the election boards to retrieve their ballots and ballot envelopes and, with campaign representatives present, translate their current record of objections, whether in the form of sticky notes, spreadsheets or stacks, to a record of the objection and disposition written on the back of the ballot or its envelope. This is the method proscribed in state election law. It would be done with all ballots and an absentee and affidavit ballot envelopes.
If the boards are unable to determine which ballots were objected to, they are to tell the judge so he can rule based on testimony and other evidence.
Brindisi wants the Oneida County elections board to audit election districts affected by their inability to determine whether contested ballots were counted by comparing the ballots to electronic images scanned and kept on file. Any other county boards that can’t determine whether any contested ballots were counted should do thee same, Brindisi contends.
They say the Brindisi campaign objected to the Oneida board’s refusal to count approximately 400 affidavit ballots.
They also want the Chenango County elections board to canvass the 55 ballots the county reported it found earlier this week, in the presence of campaign watchers. The county reported 11 ballots were from people not registered to vote. The newly found ballots were not in the tally reported last week that led to Tenney’s apparent 12-vote margin.
A complete recanvass is not needed and would not be equitable or in the public interest, Brindisi’s team contends, because it would require more people to convene during the COVID-19 pandemic, but also because Congress is to convene Jan. 3, and doing so would likely mean the district is not represented then.
“The delay caused by a full recanvass would make it likely that citizens of the district would not be represented in the House at the start of the 117th Congress. Furthermore, a full recanvass would allow campaigns to expand the scope of their objections beyond what they validly preserved during the canvass, a result inconsistent with the statutory framework for judicial review.”