Given that it has been a full month since the election you might think a certified vote total and a winner could be determined in New York’s 22nd district by now. After all, literally every other district has done it. But in NY-22 the process drags on with no clear end in sight. That’s not an exaggeration as you’ll see in a moment.
As I described last week, there are a couple of specific issues that have prevented this race from being resolved. In Oneida county, elections officials marked ballots that had been challenged with sticky notes. They sent those ballots to Chief Justice Scott DelConte who is trying to resolve this case/election. But in the process some of the notes fell off the ballots, meaning the Judge can no longer tell why some of the ballots were challenged or even if they were counted. This has become known as “Stickygate.”
In Chenago County, election officials announced about a week ago that they had discovered 55 uncounted ballots, 44 of which were from registered voters. Those votes came mostly from Republicans in a County Tenney won, but her attorney has argued against counting them. Instead she wants to certify the vote as it stands, preserving her 12 vote lead over Brindisi.
The expectation was that Chief Justice DelConte would reach a decision about how to proceed after a hearing with attorneys for both sides Monday. The hearing was held yesterday and based on his criticism of attorneys for both sides it sounds as if the judge is leaning toward ordering a full recount.
DelConte heard arguments for about an hour on Monday from attorneys for both parties.He announced that he will soon issue his written ruling. But his line of questioning during the hearing gave some insight into problems he sees with both candidates’ arguments.
Though he has not ruled, DelConte suggested that Tenney’s lawyers were trying to get the judge to order results to stand that they know are inaccurate. At the same time, he suggested that Brindisi’s attorneys are asking only for recounts in counties or precincts that they deemed to be a political advantage to Brindisi…
DelConte said he understood both campaigns’ strategies, but they weren’t convincing him. Also, he is obligated to maintain public confidence in the election, he said.
“None of the lawyers here want to win a lawsuit, they want to win an election,” he said. “But the role of the court here as I see is to make sure that everyone follows the law.”
If the vote can’t be certified as it is (what Tenney’s camp wants) and partial recounts wouldn’t be fair (what Brindisi’s camp wants) that only leaves one option: a full recount of everything. Even Brindisi’s lawyer thinks that would take too long but that’s where DelConte is headed.
A recount might at least solve the Stickygate mess except that Oneida County just announced that one of their election workers tested positive for COVID-19 after working a shift last Friday. That means all of the County’s election workers have been exposed to COVID and will now need to be tested. Depending how many get sick, the county’s ability to perform a recount could be severely limited.
Also during the Monday hearing, DelConte revealed that a dozen more uncounted ballots have been discovered in Chenago County:
During the proceedings, DelConte revealed at least 12 more ballots had been found in a drawer in Chenango County, prior to 55 uncounted early voting ballots discovered last week. While the Brindisi campaign wants to count those ballots, the Tenney campaign argued the votes should have already been canvassed and an evidentiary hearing would be required to figure out where the ballots were prior to being discovered.
Tenney won the vote in Chenago County by more than 10 points so, statistically speaking, those extra votes should help her. You would think the Brindisi camp would be very suspicious that votes keep turning up there but they seem convinced they will make up for those votes in other counties.
There’s only one way to salvage this situation and that’s to have the entire race turned into a TV movie. Some of the twists, like election workers getting COVID, wouldn’t be believable if not for the fact they actually happened. But the twists and turns in this race would make for great drama. And given that we may be about to start a full recount, someone in Hollywood could probably have this written, cast and in production before we learn the outcome.
Update 12/9: Tuesday afternoon, Justice Del Conte didn’t order a full recount but he did refuse to certify the vote and ordered each county to check thousands of absentee ballots:
Justice Scott J. DelConte…denied a motion by Tenney’s lawyers, who had asked the court to order the eight counties in the district to certify her as the winner in an election where more than 318,000 ballots were cast.
But he ordered each county election board in the 22nd Congressional District to recheck counting errors that surfaced in recent weeks, and review about 2,200 absentee and affidavit ballots, including 809 disputed by the campaigns. All told, voters cast 60,000 absentee and affidavit ballots in the election.
Where it’s not possible to correct the errors, the counties must go back and conduct a manual recount of any ballot in question, DelConte wrote in a 20-page order.
In short, this is the free-for-all that Brindisi’s team wanted. The uncounted ballots in Chenago County will now be counted (at least the valid ones from registered voters). In Oneida County some effort will be made to straighten out Stickygate, though it seems unlikely that can be done. There is no timeline in place for this work. Instead, Justice Del Conte asked for an update next Friday. Maybe we’ll have a result in this race by Christmas.