Officials say the drawn-out tabulation of votes in the 46th state Senate District could have been prevented if voters followed instructions or some reforms were instituted in the counting process.
A winner in the district isn’t expected to be named until 2013, with Republican Assemblyman George Amedore’s 37-vote victory being appealed by Democrat Cecilia Tkaczyk. The election was certified last week by acting state Supreme Court Judge Guy Tomlinson, who oversaw the counting of thousands of absentee and affidavit ballots.
His rulings on a few hundred invalidated paper ballots are being contested by Tkaczyk’s campaign, which will likely argue its case in the state Supreme Court’s Appellate Division on Jan. 7. The Tkaczyk legal brief argues that ballots invalidated for “hyper technical mistakes” or minor omissions should be counted, especially with no evidence of fraud being presented.
Schenectady County Board of Elections Democratic Commissioner Brian Quail said this ongoing legal fight and scrutiny of ballots highlights a discrepancy between the way votes are counted, depending on where and if the race is tight. To avoid an outcome like the 46th District, where the seat will likely be empty at the start of the legislative session, he said the window for challenging absentee ballots needs to be changed; also, the standards for objecting to affidavit ballots, which are provisional paper ballots cast at a polling site, need to be narrowed.
Quail wants to create a “safe harbor” period when objections to absentee ballots are acceptable. Now, lawyers for campaigns challenge the validity of absentee ballots during the counting process, but he argues this system is unfair to voters. By making campaigns challenge absentee voters before Election Day, such as when applications for an absentee ballot are issued and received, voters would have a chance to fix any mistakes and still be eligible to vote.
These applications are already accessible to campaigns as they’re coming in, and Quail noted it would make for the same standard being applied in any close race, not just ones decided by a razor-thin margin.
Quail said he would also like to see state Election Law reformed to expressly articulate that a voter’s ability to cast a ballot doesn’t hinge on whether their paperwork is correct. Instead, he said, the law should make it clear that the most important issue in determining the validity of a vote is whether that person was eligible to vote. This would avoid any challenges based on paperwork technicalities.
On this ground, Quail said affidavit ballots should only be tossed out if the voter wasn’t eligible. Currently, local election boards will toss out affidavit ballots from voters who aren’t eligible, but then campaigns for both sides will object to ballots based on paperwork glitches.
By limiting affidavit objections just to a question of a voter’s eligibility, he said almost all of the remaining invalid affidavit ballots in the 46th District would have already been counted and the process could have ended. This plan would put more power in the hands of the local boards, and, Quail said, “It would be substantively enfranchising.”
Montgomery County Board of Elections Democratic Commissioner Jamie Duchessi has taken a different lesson from the 46th District battle.
“[The race] can demonstrate to voters the importance of carefully following the ballot-marking instructions and returning absentee ballots in a timely manner,” he said. “Many voters are probably unaware of the many ways in which their votes could be thrown out if challenged.”
Duchessi noted mistakes like extra markings on a ballot, returning extra materials in an absentee ballot envelope or not signing the correct ballot envelope.
He said there could be some tweaks to the state Election Law, but ultimately, this sort of legal action could have been avoided.
“Voters following the instructions more closely would result in less ballots being challenged and potentially thrown out and in more being counted,” Duchessi said.
Regarding human error, Quail said a simple fix would be requiring poll workers to check that affidavit ballots are properly filled out when they’re handed in. If poll workers made sure these ballots were properly completed, he said a large portion of the contested ballots never would have been challenged.
Quail added that the whole process would never have happened in a race that wasn’t closely contested, which means some votes underwent a more lax review. This fact, and the lack of challenges to voters who cast their ballots on Election Day, could represent a violation of the constitutional right to equal protection under law, as different standards are being applied.