The state judge overseeing the counting of contested ballots in the 22nd Congressional District election has ordered the counting of nearly 1,100 affidavit ballots from residents who filed voter registration applications on time but which were never processed and entered by the Oneida County Board of Elections.
Supreme Court Justice Scott DelConte issued the order Wednesday afternoon in the case, which involves the only undecided election for Congress from 2020.
An unofficial tally of votes counted so far has former Congresswoman Republican Claudia Tenney leading Democrat Anthony Brindisi, who served until his term official ended Jan. 3, by 29 votes.
The Board of Elections is to correct its mistakes and report back to DelConte by this coming Wednesday.
The ruling involves affidavit ballots, provisional paper ballots voters may cast when they go to the polls only to be told their names are not in the official poll books or are rejected for some other reason.
The Board of Elections rejected numerous affidavit ballots because the voters’ names did not appear in the state registered-voter database. But it emerged in testimony that the Board of Elections did not process some 1,100 applications from residents who used an online voter-registration form used by the state Department of Motor Vehicles.
Board staff testified that such processing stopped Sept. 23 even though anyone registered as late as mid-October would be eligible to vote Nov. 3 or in early voting.
DelConte wrote that the law clearly says a registration is complete upon receipt of the application by the appropriate county board of elections.
DelConte rejected pleadings by Brindisi’s legal team to limit the ballots to be counted to 68 whose initial rejection by the board was protested by his campaign. DelConte also rejected the Tenney team’s contention that counting the unprocessed applications amounted to unauthorized retroactive registration.
“Both of these arguments ignore the fact that this problem only exists because, as Commissioner (Carolanne) Cardone testified, the Oneida County Board of Elections failed to comply with the express procedure under Election Law 9-209(2)(a)(v) and review its records during the court-ordered canvass.”
The judge wrote that the law clearly intends to protect the rights of people who register to vote properly but are kept from it through no fault of their own.
“The court simply cannot allow the board or the parties to disregard the express mandates of the Election law … especially where it would result in the unconstitutional disenfranchisement of duly registered voters who cast valid ballots.”
In addition to the 68 affidavit ballots over which the Brindisi campaign raised issues, DelConte’s order said there are 1,028 other rejected affidavit ballots in question.
While the ruling involves only Oneida County, DelConte allowed the candidates’ lawyers to present any evidence they have that similar problems came up in the other counties of the congressional district.
He also noted that the uncounted ballots also presumably had votes in other races.
DelConte further chastised elections officials, noting in a footnote that there were probably voters who did not challenge being told they were not registered and did not cast an affidavit ballot or ask a judge to allow them to vote, as is their right.
“Because the Board did not process the voter registration applications, thousands of eligible voters’ names did not appear in the election day and early voting poll books. No one will ever know how many individuals, when told by a poll worker that they weren’t listed in the poll book, simply walked away from the polling site, without completing and casting an affidavit ballot or seeking a court order.”