Brindisi, Tenney ballot count continues

Above left, Anthony Brindisi is still battling it out with Claudia Tenney, right, for New York's 22nd Congressional District more than 2 months after Election Day.

Judge says Oneida County improperly rejected ballots cast by registered voters

OSWEGO — The nation’s last undecided U.S. House race still does not have a clear end in sight, as a judge this week said the Oneida County Board of Elections improperly rejected ballots cast by registered voters and ordered the board to correct those errors.

More than two months after Election Day, New York’s 22nd Congressional District race between incumbent Rep. Anthony Brindisi, D-Utica, and former Republican Rep. Claudia Tenney is yet to be decided. Separated by a razor thin margin — 29 votes in Tenney’s favor at the most recent count early this year — the lead has swung back and forth between the candidates while vote tallies have been under review in State Supreme Court since November.   

The 22nd Congressional District encompasses a portion of northeast Oswego County, along with all or part of Oneida, Cortland, Madison, Broome, Tioga, Herkimer and Chenango counties.

State Supreme Court Judge Scott DelConte on Wednesday ordered the Oneida County Board of Elections to review more than 1,000 affidavit ballots that were improperly and illegally rejected by the board. The Oneida County board failed to register more than 2,400 voter registration applications that were filed on time through the state Department of Motor Vehicles (DMV), according to DelConte’s ruling, and election officials in the county rejected at least several dozen votes cast by those individuals.

DelConte said Oneida County officials violated a Dec. 8 ruling — which called on counties to fix errors made during initial ballot counts — by rejecting the ballots, and ordered the board to correct the error by “properly canvassing all of the affidavit ballots submitted in Oneida County, including reviewing all of its records to ensure that every valid vote submitted by a lawfully registered voter entitled to cast a ballot in this election is counted.”

The ruling by DelConte calls for at least 1,103 rejected affidavit ballots to be reviewed, and earlier in January there were a total of 1,188 ballots already presented to the court for review.

On Election Day, Tenney led Brindisi by 28,422 votes with more than 300,000 votes cast, but more than 60,000 affidavit, military, special and absentee ballots had not yet been counted. When the judicial review started in late November, Tenneys lead shrunk to less than 200 votes, and the count has ebbed and flowed throughout the last two months.

Attorneys for Brindisi in early January presented at least 68 affidavit ballots that Oneida County had rejected due to non-registration, despite voters having filed applications on time at the DMV. DelConte said dozens of affidavit ballots were rejected by the board due to voters not being registered despite “incontrovertible evidence that those voters had timely filed an electronic voter registraion application” with the DMV.

Individuals who submitted completed applications to the DMV were legally registered and entitled to vote in the 2020 election, DelConte said, noting under state law the voters are legally registered as soon as a completed application is recieved by the board. Oneida County’s failure to process the applications does not make the voters ineligible, DelConte said, citing state election law.

DelConte said “there is no question” the board failed to review, or even consider, the unprocessed voter registration applications when it improperly rejected at least 68 valid affidavit ballots. The judge said the court “cannot allow the Oneida County Board of Elections’ incomplete and improper canvass of affidavit ballots to compromise the true election results, nor to disenfranchise any voter.”

Counsel for Tenney and Brindisi argued the court should disregard some or all of the potentially valid ballots, Del Conte said in his decision, noting it would be strategically advantageous for either party. Doing so. however, would result in “unconstitutional disenfranchisement of duly registered voters who cast valid ballots,” according to the judge, who called for all of the ballots to be reviewed.

DelConte’s Wednesday order calls for a review of all the affidavit ballots rejected by Oneida County due to voters not being registered. Since no evidence has been presented that other election boards made similar mistakes, Oneida County is the only board currently required to do such a review. DelConte, however, noted if there is evidence another board failed to process registration applications, the court would similarly call for corrections to those errors.

Results of the Oneida County  review are to be reported no later than 6 p.m. Jan. 27.

New York’s 22nd Congressional District seat, previously occupied by Brindisi, is empty as the vote tabulation continues.

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