As Recount Begins, Lawyers Urge Cabán Campaign To Contest More Discarded Ballots

Theodore Hamm Jul 9, 2019

After last week’s count of absentee and affidavit ballots, Melinda Katz currently clings to a 16-vote lead. But while the Board of Elections (BoE) prepares for a manual recount of nearly 90,000 ballots, this morning Tiffany Cabán’s legal team appeared before a Queens Supreme Court judge regarding the affidavits. 

Lawyers for the two campaigns asked Judge John Ingram to order the BoE to count 114 affidavit ballots, the majority of which were rejected because “Democratic Party” was not stated on the form accompanying the sealed envelope that contains the ballot. According to the BoE’s own manual, it is the responsibility of the poll worker, not the voter, to ensure that the form is filled out completely. 

Meanwhile, legislators are urging Assembly Speaker Carl Heastie (a Katz supporter) to send a recently passed bill to Governor Cuomo (who also endorsed Katz) that loosens the restrictions on accepting affidavits. 

Lawyers not connected to either campaign also tell The Indypendent that Cabán’s team should contest more of the BoE’s affidavit rejections — specifically those in which the voter went to the wrong polling precinct but was likely not informed by the poll worker that the affidavit would be invalid. 

The BoE, which is run by the Queens County machines (Democrat and Republican), rejected roughly 2,300 of 2,800 affidavit ballots. Nearly 1,700 of the denials were because the voters were registered as Working Families or Greens (etc.) rather than Democrats, or not registered at all. Those affidavit rejections cannot be challenged. 

Although Cabán campaign staff would not provide an exact number, a detailed Facebook post from its legal team suggests that “wrong polling site” was the second most-common reason for affidavit rejections. The post then argues that “[t]here’s no legal way to count them.” Here’s where others disagree. 

Election lawyer Ezra Glaser, who says that he’d prefer Katz over Cabán, nonetheless maintains that Cabán’s team should fight the wrong polling site rejections. “New York continues to have the most restrictive election laws in the U.S.,” Glaser says, “but the recent legislation is finally moving in the direction of expanded voter participation.”

Legislation passed in January, and in effect for the June primary, allowed voters registered in another county or at another address within Queens to cast an affidavit ballot. Given that the DA’s race is a county-wide race, Glaser says, it “doesn’t matter” where the affidavit voters cast their ballots. 

The June bill awaiting Cuomo’s signature also makes “substantial compliance” with the process the new standard for the BoE to accept affidavit votes. In Glazer’s view, both the new law and pending bill create room for Cabán’s legal team to appeal what is expected to be an unfavorable ruling by the Queens court. 

Former NYCLU director Norman Siegel, whose first campaign for public advocate (in 2001) went to a runoff, agrees that the wrong polling site rejections “should be challenged.” Siegel points out that upon entering a polling precinct, a BoE worker asks voters for their address, then directs them to the correct table where the voter signs the registration book in order to receive a ballot. 

Thus, if the person entering the polling site gives an address that’s not included in that precinct, the poll worker should have informed the voter before initiating the affidavit process. 

Cabán’s legal team did not reply to requests for comment. But in a race in which quite literally “every vote counts,” it’s essential to wage any and all challenges in order to force New York’s higher courts to rule. 

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