NY22: Brindisi, Tenney campaigns lay out arguments on what ballots to count
The legal teams for both candidates in the race for New York’s 22nd Congressional District are preparing for final oral arguments in state Supreme Court on Friday.
Those preparations were detailed in legal briefs filed Wednesday, which provide depth and legal backing to arguments already presented during the ballot-by-ballot judicial review by state Supreme Court Justice Scott DelConte.
Republican Claudia Tenney of New Hartford leads Democrat Anthony Brindisi of Utica by 29 votes in the latest unofficial results. The race is a rematch of the 2018 election, which Brindisi won by less than 4,500 votes.
An order from DelConte on Wednesday will require the Oneida County Board of Elections to correct errors in its canvass of affidavit ballots connected to 2,418 unprocessed online voter registration forms. The error correction and update tallies from Oneida County are due Wednesday, Jan. 27.
On Thursday, Brindisi’s legal team reiterated its stance the court is limited to only reviewing the contested affidavit ballots based on registration and requested a stay on the order to canvass all of the affidavit ballots again. The Brindisi campaign objected to 60 affidavit ballots on the basis of registration, which were described as mostly young people and Democrats during court proceedings.
Attorneys for Brindisi and Tenney sharply disagreed with each other on a range of topics, including the fate of more than 100 ballots in Madison County.
Brindisi’s legal team argues the ballots should be counted, relying on witness testimony and evidence the ballots were returned by the set deadlines. The Tenney campaign contests the county board of elections did not maintain a chain of custody and should not be included in the count.
The arguments on both sides affect two sets of Madison County absentee ballots — those dropped off at Madison County polling places and those dropped off at other polling places on Election Day, then mailed to the Madison County Board of Elections.
The Brindisi campaign argued all six employees of the county board of elections testified all ballots counted by the board were received on time. The absentee ballots dropped off at poll sites in Madison County were timestamped Nov. 4, as that was when election officials opened sealed bags from the evening of Nov. 3 at polling sites and documented the ballots.
The argument also rests on the testimony of Madison County Republican Elections Commissioner Mary Egger, who testified the board did not retain the envelopes of absentee ballots dropped off at polling sites in other counties and mailed to Madison County, as “there was no question that the ballots were dropped off by voters in those counties on or before November 3.”
Tenney’s attorneys argue there is no proper chain of custody, as Madison County did not follow state election law requirements to document absentee ballots were received on Election Day at polling sites. Without documentation of who received the ballots and when, the court cannot know when the ballots came from, her legal team said.
Egger’s testimony showed she could not account for any of the ballots, either personally or through documentation, but on the belief they were received timely, the Tenney campaign argued.
The Brindisi campaign argued the state doesn’t require a chain of custody for each ballot and Egger testified the absentee ballots dropped off at Madison County polling sites were sealed in bags, placed in a jail cell overnight and then opened and timestamped Nov. 4. His attorneys also argued the ballots were always in the custody of public officers — law enforcement, postal workers or election officials — and have signatures to provide additional assurance they were genuine.
The Tenney campaign similarly argued ballots from Broome County, marked as “incomplete-purged” registration status, are invalid. Broome County Democractic Commissioner Christina Dutko testified that anyone with the purged status is not a properly registered voter.
While the registration status of some voters was updated for those who cast affidavit ballots due to the purged voter status, Dutko said those listed as purged would not have been eligible to vote.
The Brindisi campaign argued voters listed as purged due to moving their registration address or who have other county or state records to show the purged status is an error should have their votes counted.
Brindisi’s attorneys argued the statewide transfer law should permit voters casting affidavit ballots to be treated as valid voters. The state database can be used to confirm the identifying information of the voter when they registered, such as name, birthdate, social security number and signature, they argued.
For seven contested ballots in Broome County, for instance, the state database indicates all of the voters are active and registered well before Election Day, the Brindisi campaign said. As such, the state database should override Broome County’s voter registration database, they argued.
The Madison County ballots in question already are included in the unofficial count, which gives Tenney her 29 vote lead. The ballots of those in purged status, including those in Broome County, are not currently included in the tally.
Both sides will make their final oral arguments before DelConte at 11 a.m. Friday in Oswego County Supreme Court.
Steve Howe is the city reporter for the Observer-Dispatch. For unlimited access to his stories, please subscribe or activate your digital account today. Email Steve Howe at email@example.com.