A judge this week admonished election officials for failing to provide an accurate, transparent vote count in the undecided race for Congress between Rep. Anthony Brindisi and Claudia Tenney.
State Supreme Court Justice Scott J. DelConte made it clear there was no vote fraud in the election. He also said election officials can’t blame the coronavirus pandemic and a record number of absentee ballots for the problems.
Instead, he placed the blame squarely on election workers, noting that election boards in seven of the eight counties in the 22nd Congressional District simply didn’t do their job correctly.
DelConte blamed the errors for delaying his review of disputed ballots in an election where more than 318,000 people voted. For now, Tenney leads Brindisi by a razor-thin 12 votes. Tenney led by 28,422 votes on election night.
“Judicial review of the candidates’ challenges is now impeded because the Boards of Elections failed to follow the canvassing procedures set forth in the election law,” DelConte wrote in a decision Tuesday.
“Those failures caused the candidates – who may be separated by as few as 12 votes – and their prospective constituents, to endure changing and confounding vote tallies, perplexing ballot rulings (or, at times, no rulings at all), and mysterious uncanvassed and ‘mislaid’ ballots.”
Here’s a look at nine examples where the judge said election officials failed in their duties to voters:
Oswego County used sticky notes to track disputed ballots
Oswego County election officials were the first to admit they failed to follow state election law with disputed absentee ballots.
The law requires election officials to note why campaigns are challenging those ballots by writing the reasons in ink on the face of the ballots.
But Oswego County officials wrote “partial notations” on sticky notes and attached them to the six ballots in questions.
Those notes “failed to clearly identify the challenging candidate, or the grounds for his or her challenges,” DelConte wrote, leaving the fate of those ballots in question.
Oneida County had a big problem with sticky notes
DelConte noted that sticky notes are “small pieces of adhesive paper designed to be temporary and easily removed.”
Nobody demonstrated that point better than Oneida County’s election commissioners, who also used sticky notes to keep track of the reasons why Brindisi and Tenney disputed dozens of ballots.
When the judge asked to review those ballots in his court, the election commissioners admitted that some of the sticky notes had fallen off ballots.
DelConte said that the notes for disputed ballots were “affixed on cryptic – and occasionally missing – sticky notes, and that, because of the board’s improper use of sticky notes to mark challenges, it was impossible in some cases to know whether a challenged ballot had been counted or not.”
Oneida County mishandled about 1,500 affidavit ballots
Oneida County election commissioners also admitted they didn’t follow New York election law when they rejected about 1,500 affidavit ballots.
Affidavit ballots, or provisional ballots, are given to voters at polling sites when their names or signatures are missing from poll books, often the result of a change in the voter’s name or address. Ballots are later checked and rejected if it turns out the voter was not registered in New York.
But DelConte said Oneida County election officials rejected those 1,500 ballots without giving representatives from Brindisi and Tenney a chance to review them first.
It’s also not clear how many of those ballots may have been rejected because the voter had moved within the state after registering, their registration had become inactive, or if the voter’s information was incorrectly transferred to another address even though they had not moved, the judge said.
At least 400 of those challenged affidavit ballots were simply wrapped in rubber bands, placed in a cardboard box, and never counted or ruled upon, DelConte said.
A state law passed in 2019 requires New York election officials to recognize “registration portability.” If a voter is legally registered at one address, their registration automatically moves with them to a new address, even if it’s in a different county.
Herkimer County made counting errors
Herkimer County lawyers told the judge Nov. 29 that election officials had miscalculated the vote tally for Brindisi and Tenney.
Without any detailed explanation of the mistake, the county lawyers said that Brindisi should have received 10 more votes and Tenney should have received 25 more votes.
The result meant that Brindisi’s overall 13-vote lead in the election disappeared, giving Tenney the 12-vote lead she holds today.
Chenango County discovered 55 uncounted ballots
A day after Herkimer County reported its error, Chenango County lawyers told the judge that its election commissioner discovered 55 uncounted ballots that had been “mislaid” at the Board of Elections office.
Chenango County’s elections commissioners said the affidavit ballots had been set aside for unknown reasons during the state nine-day early voting period before Election Day.
The commissioner determined that 44 of the ballots are valid. They were set aside, uncounted, pending directions from the judge.
Madison County lost track of disputed ballots
Madison County Election Commissioner Mary Egger admitted in a court hearing that the Board of Elections had lost track of the Tenney campaign’s challenges to the board’s rulings on the validity of 132 absentee ballots.
DelConte said election officials failed to note the outcome of those challenges on the face of those ballots.
“Instead, the ballots challenged by the Tenney campaign were simply placed in
piles, and then an incomplete spreadsheet including only 123 of the challenged ballots was hastily created (either during or just before the court’s hearing) in an attempt to recreate the Tenney campaign’s challenges and the board’s rulings upon them,” DelConte wrote in his decision.
Cortland County didn’t tell anyone about rejected ballots
A Cortland County election commissioner admitted in court that officials rejected about 100 affidavit ballots, but never told the Brindisi or Tenney campaigns about the decision.
“In fact, it appears that the campaigns only learned of the existence of these administratively rejected affidavit ballots at the (court) hearing,” DelConte wrote.
Representatives for Brindisi and Tenney were entitled to see the rejected ballots and file objections to the decision not to count them.
Broome County used a numbering system that didn’t work
A Broome County deputy elections commissioner testified about several violations of election law related to the counting of absentee and affidavit ballots.
DelConte said the county’s Board of Elections failed to rule on objections by the candidates to an unspecified number of ballots.
Separately, when the candidates challenged rulings by the election commissioners on more than 300 absentee ballots, election officials failed to record those objections in writing on the face of the ballots.
Broome County came up with its own improper system to record the objections, the judge said. The county used a “creative numbering system” which was later reproduced on a spreadsheet.
Chenango County found 12 ballots stuffed in a drawer
Chenango County election officials couldn’t explain to the judge what happened to 12 absentee ballots found in a drawer at the Board of Elections.
The ballots were marked “undetermined” and never counted, in violation of election law, DelConte said.
The 12 ballots are in addition to the 55 uncounted affidavit ballots discovered weeks after the election.
MORE ON THE NY-22 ELECTION
Judge’s order could help Brindisi as focus turns to uncounted ballots in NY-22
Blood or chocolate? What happens to stained ballot in Brindisi-Tenney House race
Judge orders partial recount in Brindisi-Tenney House race
New complication for NY-22 race: Election worker has coronavirus
Brindisi-Tenney House race exposes New York’s election dysfunction
Got a tip, comment or story idea? Contact Mark Weiner anytime by: Email | Twitter | Facebook | 571-970-3751