NY Judge Orders Recount in Tight House Race Where Votes Were Killed Quietly

Democratic Congressman Anthony Brindisi represents the New York’s 22nd Congressional District, but his reelection remains plagued by violations in the counting of ballots in the 2020 race. (Credit: Brindisi for Congress via Courthouse News)

OSWEGO, N.Y. (CN) — Ordering a recount in the undecided upstate congressional race, a New York judge fumed Tuesday that election officials in eight counties had willfully rejected 1,500 absentee ballots that presumably came from Democratic voters.

Justice Scott J. DelConte emphasized that unlike the unsubstantiated accusations of pervasive vote fraud still pestering the presidential race, the claims against the boards of election for Oswego, Oneida, Madison, Herkimer, Chenango, Broome, Cortland and Tioga counties involve “hundreds of ballots that were never canvassed …  in the first place.”

“To be clear, there is absolutely no evidence or even an allegation before this court of any fraud on the part of the boards or the campaigns,” he wrote. “Nor is there any evidence that the boards’ failures and errors were a result of the pandemic, recent amendments to the election law, or a strain upon the Boards of Elections’ capacity and resources.

“Instead, the problems experienced by the candidates and, consequently, all of the voters across the eight counties in New York’s 22nd Congressional District, were a direct result of ‘the careless or inadvertent failure to follow the mandate of statute and case law’ by the Boards of Elections.”

On election night last month, unofficial results for early and same day in-person voting put incumbent Democrat Anthony Brindisi some 28,000 votes behind his Republican challenger, Claudia Tenney, who held the seat from 2017 to 2019.

But this was before some 60,000 absentee, affidavit, military and special ballots had been canvassed and counted.

Like the “red mirage” scenario that some experts predicted would show President Donald Trump ahead on election night before a wave of Democrat votes poured in once absentee ballots were counted, Brindisi overtook Tenney by a narrow 12-vote margin as the upstate New York county boards of elections processed and counted additional votes.  

Lawyers for Tenney struck out with their bid to have the eight counties simply end canvasing and certify her as the winner. 

“Tenney’s proposed resolution would require that this court ignore multiple errors by the Respondent Boards of Elections, disregard proper challenges to invalid ballots that were counted and valid ballots that were not counted by both parties, and ignore hundreds of ballots that were never canvassed in the first place,” DelConte wrote. “That is not the role of the court. The winner of this election must be decided by the real parties in interest: the voters. And to do so, every valid vote must be counted.” 

DelConte highlighted evidence suggesting many legal ballots were improperly discounted.

“The Oneida and Cortland County Boards of Elections (and perhaps others), failed to properly process hundreds of affidavit ballots,” the 21-page opinion bellows. “Specifically, those boards never canvassed the affidavit ballots as expressly required under Election Law $ 9-209 but, instead, administratively rejected them, and denied the campaigns an opportunity to object to the boards’ refusal to cast those ballots.”

Tenney campaign spokesman Sean Kennedy said on Tuesday that her campaign believes that the retallying of the votes ordered by Judge DelConte will confirm her win.  

“It appears that this ruling will see to it that every legal vote is counted,” Kennedy said in a statement Tuesday evening. “If the proper legal procedures are followed, we are confident that we will prevail and Claudia will assume office as the Congresswoman for New York’s 22nd District.”

An early and vocal supporter of President Donald Trump, Tenney previously served in the New York State Assembly from 2011 to 2017. Though she unsuccessfully challenged incumbent U.S. Representative Richard L. Hanna in the 2014 Republican primary, she was elected to Congress in 2016 after Hanna retired.  Brindisi wrested that seat from her in 2018, declaring victory with a lead by just shy of 4,000 votes. 

Representatives for Brindisi have not returned a request for comment. 

“It is more important that this election is decided right, than that it is decided right now,” DelConte wrote.

“The court’s role is not to rewrite the law and make the canvassing process convenient, nor to reach an amicable resolution,” the Oswego County Supreme Court ruling states. “Instead, the court must make sure that all parties have complied with the plain and unambiguous mandates of the election law, so that the correct result is reached.” 

In addition to the issue of 1,500 absentee ballots being summarily rejected without canvassing, the opinion points to the bizarre discovery of 12 absentee ballots “inexplicably found in a drawer”

A month after Election Day, the Oswego County Supreme Court now says officials in Oswego and seven other upstate counties must immediately correct all canvasing errors and possibly recount some of the hundreds of disputed absentee and affidavit ballots cast in the undecided House race. 

“The right to vote means that every single valid vote must be counted,” Justice DelConte wrote in a 20-page opinion. “Correcting the errors of the Boards of Elections or, where they cannot be corrected, directing the recanvassing of those ballots, is the only way to accomplish this, no matter how time consuming it may be.”

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