NY22: Tenney declares victory over Brindisi, results not certified
There are no more votes to canvass in New York’s 22nd Congressional District, but no winner has been certified — yet.
Republican Claudia Tenney leads Democrat Anthony Brindisi by 125 votes in a rematch of the 2018 election.
Five county boards of elections in the district recorded final tallies to state Supreme Court Justice Scott DelConte on Tuesday, while Cortland County updated its results on its website. Results from Herkimer County were not posted Tuesday.
While Oneida County is temporarily barred from certifying its results by DelConte, it wasn’t due to any error, but to prevent final certification of the race.
DelConte issued the temporary restraining order due to “the possibility of irreparable harm” if one candidate is certified the winner, then the election results are overturned by an appeal.
Tenney declared victory Tuesday, a step she has stopped just short of throughout the judicial review. A campaign statement called for the results to be certified following the court-ordered canvass.
“The court’s review has been thorough, transparent, and fair to all parties,” the statement said. “Ballots have been scrutinized and we are confident all legal votes have been counted.”
Brindisi’s campaign issued a statement, highlighting how close the race is, with a gap of approximately .04%.
“We look forward to continuing the legal process and remain confident that once this is resolved, Anthony Brindisi will be declared the winner and returned to Congress to continue his important work for the voters of NY-22,” the statement said.
What happens next?
With the results in the race all but determined, the road ahead for Brindisi relies on a successful appeal.
Brindisi filed an appeal Jan. 21, following DelConte’s ruling for error correction on all affidavit ballots in Oneida County following the discovery of 2,418 unprocessed online voter registration applications.
Brindisi’s attorneys requested a motion to stay on DelConte’s ruling with the state’s appellate court division. Judge Patrick NeMoyer declined to approve the stay in a letter on Jan. 25.
The Brindisi campaign argued only 69 ballots challenged during the canvass should be subject to error correction ordered by the court, because only those ballots were preserved for judicial review. The court does not, Brindisi argued, have jurisdiction to address the broader issue of timely registrations if the ballots were not preserved from the canvass by either campaign.
Tenney’s legal team also filed an appeal Jan. 7 in response to DelConte’s ruling on various errors by the county boards of elections discovered over the course of the judicial review. She had requested the court end the canvass process immediately, while she led by just 12 votes.
A timeline for an appeal in the state’s second-highest court is unknown, though it would push off seating the district’s representative yet again. It’s been more than three months since Election Day.
At least for now, a hand recount is not in the works. Brindisi’s attorneys requested a manual audit of results in filings Monday, but DelConte declined to grant it.
In an order filed Tuesday, DelConte said the Brindisi campaign did not request a recount in its initial filings, questioned the court’s jurisdiction to grant a recount and it was the first time problems related to the scanning of paper ballots and counting of votes were brought up.
“In other words, not only did Brindisi not ask for a manual audit … until yesterday, he previously argued that this Court has no authority to order that relief,” DelConte said.
A manual audit of early-and-same-day machine ballots should have been conducted within 15 days of the election, DelConte said, and those audits would have had to reveal a substantial possibility the results could change.
“That burden is high, and it has not been met,” DelConte said.
Certification remains on hold until DelConte lifts the temporary restraining order. Attorneys for both candidates will file legal briefs to address what happens if a candidate is seated in Congress, then the results are overturned by appeal.
On Monday, Tenney attorneys argued the appellate court could overturn the election results, but declined to say if Tenney would resign if Brindisi won the election on appeal. Brindisi’s attorneys argued the Constitution spells out the fact that only Congress can seat its members, not a state appellate 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 firstname.lastname@example.org.
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