The winner of the election for the 46th Senate District will likely be determined by how the state Supreme Court Third Department’s Appellate Division defines a qualified voter.
James Long, arguing on behalf of Democrat Cecilia Tkaczyk, who currently trails Republican Assemblyman George Amedore by 37 votes, said in court on Monday that a broad definition should be applied so that hundreds of invalidated ballots in this race would be counted.
Amedore’s attorney, David Lewis, called on the court to uphold a strict interpretation of what constitutes a qualified voter so that voters who followed procedures correctly don’t have their rights diluted and to guard against voter fraud.
At issue are about 50 votes from election workers in Ulster County and about 275 affidavit or absentee votes from the entire district, which also includes Montgomery, Schenectady, Albany and Greene counties. These ballots were challenged by lawyers for the two campaigns and ruled invalid by acting state Supreme Court Judge Guy Tomlinson, who oversaw the counting of paper ballots in this race.
The panel of five appellate justices who heard this case will decide how many votes should be counted, from none of them to all of them.
The race could still be up for grabs if additional votes are counted, but Amedore’s victory was already certified by the state Board of Elections. It is possible for the state Senate to convene this week and give Amedore the seat before a ruling comes from the court.
Senate Republican spokesmen did not respond to an email about the possibility of seating Amedore before the court rules. State Sen. Neil Breslin, D-Delmar, has previously called for the judicial process to be completed in this race before a winner is seated in the chamber.
The Ulster County election workers had their votes invalidated because their special ballots were cast more than two weeks before the election, even though the law requires they not receive their ballots until two weeks before the election.
Long said this error stemmed from the Ulster County Board of Elections handing out the special ballots too early, which meant voters shouldn’t be punished. He added that the law didn’t specifically forbid them from voting more than two weeks before the election and that it only laid out a deadline for submitting votes.
Highlighting the restriction on handing out these special ballots, Lewis argued, “If they can’t get the ballot, you’ve got to agree they can’t vote [early].”
Existing law is designed to count votes affected by administrative errors, which are mistakes made by elections officials that cause voters to improperly cast their ballot. Lewis argued that this standard didn’t apply to the election workers because they’re responsible for educating other voters on Election Day and that makes them a “unique class.”
These arguments from Lewis were subject to skeptical questions from the justices, who reiterated the law’s prohibition on when special ballots could be handed out, the lack of restrictions on when the votes could be cast and the elimination of an earlier codification of when special ballots could be cast.
This is likely good news for Carole Furman, an Ulster County election worker whose ballot was invalidated because of when it was cast. Joined by a few other disqualified voters and people connected with the liberal-leaning group Citizen Action of New York, she spoke out before the hearing about her circumstances and why her vote should be counted.
It’s not clear how the outcome would be affected by counting these votes, but about 75 percent of them were challenged by lawyers for Amedore.
Standing near a banner that said, “This isn’t Florida in 2000: Count All the Votes,” Citizen Action Executive Director Karen Scharff argued that the hundreds of ballots invalidated for minor mistakes in this race should also be ruled valid and counted. A majority of these ballots were also contested by lawyers for Amedore.
The justices didn’t tip their hand on these votes, giving both attorneys some tough questions. They said they could rule as early as today.
Long argued that improperly filled out absentee and affidavit ballots didn’t invalidate a ballot, because the issue was whether the voter was eligible to cast that ballot in the first place. He noted that the ballots were initially ruled valid by the local boards of elections and only invalidated when the process became partisan.
“They would have been counted if there wasn’t any litigation,” Long said of the votes.
In contrast, Lewis contended that a voter was only eligible to vote if he completed the process completely. He said that leaving out information in the process disqualified a voter.