Who will represent the 22nd Congressional District in Washington may come down to whether nearly 70 people who filled out a voter registration form through the Department of Motor Vehicles were really registered to vote.
The legal teams representing Republican Claudia Tenney and Democrat Anthony Brindisi have filed briefs with state Supreme Court Justice Scott DelConte outlining how they believe he should rule on the paper ballots filled out by more than 60 voters. Brindisi’s filings mention 69 such voters and Tenney’s 64.
It emerged during previous hearings in the court review of the ballot counting that Oneida County election commissioners did not include those ballots because they considered the voters not registered on time.
Commissioners and their deputies said they received registration applications but did not process them as they were overwhelmed with a flood of absentee ballot requests during the COVID-19 pandemic, carrying out recent changes in the law regarding registration, and preparing for the first major general election with 10 days of early voting at multiple polling sites, as well as preparing for Election Day.
Whether they should have may decide whether Tenney’s lead of 29 votes in unofficial tallies holds up.
DelConte heard oral arguments Friday, and set Wednesday as the deadline to file more briefs, with final arguments two days later, all in Oswego, where he is based.
The issue largely deals with provisional, or affidavit, ballots that people who are not allowed to vote normally may fill out if they are told at the polls that their names are not in the official poll books, or lists of registered voters at a polling place.
The Brindisi team argued in briefs filed Thursday that a provision of state election law specifically says a candidate can contest a refusal to canvass, or count, affidavit ballots rejected by people whose names are not in the poll records.
The lawyers maintain, and Tenney’s representatives acknowledge, that many more — as many as 2,400 — voters filled out registration forms that the Oneida County elections office did not process in time to get their names on the poll books. How to handle all of them is beyond the judge’s authority under election law, Brindisi’s team acknowledged, but they maintain he clearly has the authority to require the counting of those that Brindisi’s campaign objected to leaving out.
The applications should be considered complete because the DMV transferred the completed electronic applications before the required 20 days ahead of Election Day, the legal team said in their filing, and the law says voters should not be prevented from voting through no fault of their own.
“The sole issue with the ballots is the Oneida County Board’s failure to timely process voter registration records and update the poll books.”
Tenney’s team maintains, however, that doing so would amount to retroactively registering voters and should not be allowed for several reasons.
For one, only voters themselves have standing to have a judge register them, and it must be sought on Election Day.
Further, they maintain, the Court of Appeals, New York’s highest court, has ruled that a judge’s relevant authority is only over canvassing, not voter registration.
When considering which ballots were improper and should be excluded, an elections board is acting in legal terms as a board of canvassers but registration is done by a board of elections outside the purview of the court’s authority, the lawyers wrote.
Brindisi also did not ask for correcting orders in his team’s original court filings and thus procedurally can’t now, Tenney’s team maintains.
They also argue that Brindisi and his lawyers are cherry-picking ballots from DMV-registration voters, and noted that DelConte noticed in previous hearings that not all affected ballots remain in question.
“This Court observed that the over 60 affidavit ballots that Respondent harvested in the challenge process share one trait - the Respondent’s political affiliation.
Also, they did not call the Board of Elections to ‘push through’ their application, and not one went to an available judge for an order to cast a vote. It would be wrong for this Court to ignore the statutory design.”
Tenney’s legal team also expressed sympathy for the Board of Elections and staff.
“Many factors this last election season nearly crippled the already over-worked staff at the County Boards of Elections, especially in Oneida County. Clerk Kelly Comeskey testified that the Oneida Board faced a limited number of resources such as understaffing, the influx of paperwork, multiple Executive Orders and the difficulty having multiple employees in the office due to COVID19 restrictions.”
The election remains the only one in the House of Representatives not settled. Brindisi, who defeated then first-term incumbent Tenney in 2018 by fewer than 4,500 votes, ended his term officially when the new Congress was sworn in Jan. 3.
The case has also prompted calls for improved guidance for boards of elections and how commissioners are chosen.
DelConte has chastised election officials in many of the district’s eight counties over how they handled contested ballots, noting some failed to properly mark ballot envelopes as election law proscribed, though some commissioners have said they interpreted previous directives from courts to forbid that.