It seemed yesterday that this race was pretty much over. The unofficial count had Republican Claudia Tenney up more than 100 votes. All that was left was for Judge DelConte to certify the result. Then, Judge DelConte decided not to certify the result for at least another week after lawyers for Democrat Anthony Brindisi argued that a hand recount might be needed:
In court paperwork, Brindisi’s team alleges: “Substantial errors and irregularities in the conduct of the election have come to light. As these proceedings have continued, that evidence has only mounted… As a result, a hand audit is warranted under New York law and should be immediately ordered.”…
DelConte’s order for seven counties to finalize results Tuesday still holds, but he’s ordered Oneida County’s election commissioners to finish their work but stop just short of certification.
Specifically, Brindisi’s camp has claimed that voting machines somehow missed nine votes out of about 1,100 ballots. They argued that level of error means the machines could have missed nearly 800 ballots in Oneida County alone. And then suggested that since other counties were using the same machines, the entire district might need a hand recount.
But according to Syracuse.com that wasn’t the argument that really swayed Judge DelConte. The argument that convinced him to slam on the breaks was this one: What happens if Tenney is sent to Congress as the certified winner and then an appellate court reverses DelConte’s rulings such that Brindisi is determined to be the winner?
“Mrs. Tenney could go to Washington and vote on legislation and then a day later, a week later, they would say, ‘She didn’t win the election. DelConte got it wrong,‘ ” the judge said.
What would happen then? he asked attorneys…
Brindisi’s attorney, Bruce Spiva, cited the U.S. Constitution as saying that only Congress itself has the authority to remove a member, so a ruling by the appellate division would have no effect, even if it determined that Brindisi was the actual winner.
So DelConte wanted some time to think about this and said he would accept arguments from both sides on this matter before certifying the vote.
I appreciate that Judge DelConte is really trying to avoid making an error that can’t be reversed here but I think I can save him a lot of time on this second issue. There’s a reason he shouldn’t worry about sending Tenney to Congress and then being unable to remove her. I can summarize it in one word: Pelosi.
The last word on who is seated in Congress belongs to Congress. So if the appellate court belatedly found Brindisi to be the winner the Speaker of the House would have every motivation to kick out a Republican and replace her with a Democrat. There might be some extra steps involved but ultimately Democrats would remove Tenney and seat Brindisi. There’s little chance of making an irreversible error in this situation.
Judge DelConte should stop delaying and certify a winner. It’s February! Congress has been in session for a full month. Stop giving Brindisi’s lawyers yet another opportunity to drag this out in hopes of a miracle.