Judge: Oneida County must correct voter registration errors in NY22 Tenney Brindisi race

Source Observer Utica NY Dispatch Steve HoweObserver-Dispatch

Anthony Brindisi and Claudia Tenney

Affidavit ballots will be canvassed once again in Oneida County, following an order from state Supreme Court Justice Scott DelConte on Wednesday. 

It marks the fourth time Oneida County affidavit ballots have been canvassed since Election Day, following repeated errors or violations of state election law. In DelConte’s order, the Oneida County Board of Elections has until Wednesday, Jan. 27, to canvass more than 1,000 rejected affidavit ballots and report the results. 

The race for New York’s 22nd Congressional District — the last undecided House of Representatives contest in the nation — is currently separated by only 29 votes in preliminary tallies. Republican Claudia Tenney leads Democrat Anthony Brindisi in a rematch of the 2018 election. 

The order comes after more than 60 affidavit ballots challenged by the Brindisi campaign were connected to 2,418 online voter registration forms submitted by the state’s Oct. 9 deadline but not processed by Election Day.

More:NY22: Judge hears affidavit ballot arguments in Brindisi, Tenney race

Affidavit ballots

In his order, DelConte agreed with Tenney’s attorneys that he is unable to register voters, but said he also can’t allow voters to be disenfranchised or there to be an incomplete or improper canvass due to errors by the county board of elections. 

The judge, in outlining the history of the judicial review that began Nov. 23, assigned blame to seven of the eight county boards of elections for errors that led to a Dec. 8 order to fix errors before the review could continue. He paid special attention to Oneida County, however. 

“The most egregious error was in Oneida County, where 1,797 affidavit ballots had been administratively rejected by the board, and were not canvassed at all,” DelConte said in his order. 

DelConte said there was concern from the outset in Oneida County due to the number of affidavit ballots, the number rejected and the fact only one voter sought a court order to be allowed to vote. 

When Oneida County last canvassed the affidavit ballots, 700 ballots that had been systematically rejected by the board of elections were included in the uncertified results. 

DelConte outlined the Brindisi campaign’s arguments that 68 affidavit ballots were cast by voters who submitted their voter registration applications online through the state Department of Motor Vehicles before the Oct. 9 filing deadline. Those applications were also received by the county board of elections prior to an Oct. 14 deadline. 

The judge said testimony from election officials in Oneida County revealed online voter registration applications dating back to Sept. 24 were not processed. DelConte called Oneida County Democratic Election Commissioner Carolann Cardone’s Dec. 11 testimony “suspect in many respects,” but said there is no question the board did not review or consider the applications for at least the 68 voters identified by Brindisi’s attorneys. 

More:NY22: Judge hears affidavit ballot arguments in Brindisi, Tenney race

More:NY22: 2,400 voter registration forms were not processed in Oneida County

Court orders corrections — again

In his order, DelConte said both campaigns sought to disregard potential ballots to their own advantage. The Brindisi campaign sought to only challenge 68 ballots it identified, while Tenney ruled the court had no jurisdiction to rule on voter registration, nursing a narrow margin in a race with more than 310,000 votes cast. 

DelConte ruled voters are registered to vote when their application is completed before the deadline and it is received by the county board of elections, which must add the voter’s information to the digital, statewide NYSVoter database. Verifying the voter’s identity is a secondary step, he said, which is used to confirm qualifications. 

County boards of elections can’t reject or ignore a voter registration application just because they can’t verify the applicant’s identity, DelConte said. The board must send a written “notice of approval” that more information is required, but the application is accepted. 

The board must send a second written notice if there’s no reply for 45 days. Both written notices must include a warning the voter may be required to bring identification, such as a driver’s license, to the polls if there is a question about their identity. 

“This is because a board may not, at any time, remove an applicant from the NYS Voter database merely because it was unable to verify her identity — she remains a lawfully registered voter,” DelConte said. 

The state Legislature requires boards to review all existing records during the canvass to confirm a voter’s qualifications and determine if they’re eligible to vote, DelConte said.

If canvassers for Oneida County reviewed all records, they could have discovered a timely application for an eligible voter — someone who is at least 18 years old, has resided in the state for more than 30 days and is not incarcerated, on parole or ruled incompetent — and deemed them eligible to vote in the 2020 election. 

The Oneida County Board of Elections first error was not taking any steps to process the applications, DelConte said. They also failed to review the board’s records for each affidavit voter, including the unprocessed online voter registration applications. 

“To be clear, the board’s failure to process 2,418 voter registration applications that were timely filed — and delivered — to it, violated both state and federal law,” DelConte said. 

The remedy from DelConte is for all of the affidavit ballots from Oneida County be canvassed again, while reviewing all records, to ensure every valid vote submitted by a lawfully registered voter is counted. The correction of errors is due by at 6 p.m. Wednesday, Jan. 27

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 showe@gannett.com.