20TH BALLOTS WILL BE COUNTED, BUT FUTURE ABSENTEE CHALLENGES ARE PREDICTED
04-27-09 - 3:50 p.m. - As expected today, the court battle over the 20th Congressional District race came to a swift, even congenial end in the courtroom of State Supreme Court Judge James V. Brands, the principal outcome of which is that all remaining uncounted ballots will be counted. The concession of James Tedisco to Scott Murphy meant the Democrat is going to Washington, but the result does not mean that issues like residency raised by the Republicans are going away.
When asked if there is anything more that could happen beyond this hearing, Murphy attorney Henry Berger said, “No, there is nothing further.” And insofar as the current case is concerned, there isn’t. But lead Republican attorney John Ciampoli had another assessment. “This won’t end here,” he said. And indeed the three-page order prepared for Judge Brands to sign, agreed to by both sides, departed in only one sentence from a Democratic version when Ciampoli added and Berger agreed that all Republican challenges and objections to ballots are withdrawn “without prejudice to any challenge to any voter’s registration or qualifications in a future proceeding.”
Why is this seemingly fair, even innocuous sentence important? Ciampoli explained that, although the Special Election is over and neither Mr. Tedisco nor the State Republican Committee has any standing to continue a suit on the issues, one very attractive route remains for the Republicans: to bring suit against individual voters who claim two residencies, some of whose ballots were in dispute in the last few weeks. He believes that the recent research undertaken by the Republicans during this election on voters who have two residencies and choose to vote, for example, in Columbia County, produced many opportunities for test cases.
Who would serve as the plaintiff in such cases? Ciampoli said he has discussed the option with Greg Fingar, Chairman of the Columbia County Republican Committee. Fingar did not respond to requests for comment before this story was filed.
Tense days of locking horns over disputed absentee ballots came to an end April 27. Large paper absentee ballots are counted here at the Columbia County Board of Elections under the direction of Michael Nabozny, Deputy Republican Election Commissioner (left), and Virginia Martin, Democratic Election Commissioner (right), while attorneys and inspectors monitor the chain of custody.
The case against absentees, according to Ciampoli, who live in two places and choose to register in one place while “receiving government benefits” (for example, STAR exemptions, rent stabilized New York City apartments, and lower school taxes) is based on facts such as these. One person has a “$5 million duplex in Manhattan,” where the unnamed individual claims a STAR exemption, and “$.5 million house in Columbia County” where s/he votes, Ciampoli said. He also claimed possession of a letter sent out to second-home residents some years ago urging them to register to vote in Columbia County. He asserted that the letter showed a “systematic program” that would enhance the Republican challenge.
Regarding the legal basis for such continued court action against second-home voters, Ciampoli estimated there were “hundreds” who could be sued. There is one case adjudicated in Brands’ court recently, where the person was convicted of falsely voting absentee yet voted in the 20th CD again on March 31 after having been advised, Ciampoli would not say by whom, to vote using the machines so that the person’s vote could not as easily be challenged.
Apparently the balance of legal arguments falls on a variety of suits generally decided in one of three courts: the New York State Supreme Court; the New York State Appellate Court, which is superior to the State Court; and the Federal courts.
Democratic attorneys believe their hand is strengthened because the cases that have gone against their position were decided in the Supreme Court—for example, Judge Brands’ decision issued when he reversed an earlier order and allowed ballot challengers to examine the applications to vote absentee of disputed voters. The Republicans believe their hand is strengthened when Appellate and Federal court decisions are reviewed. These specific cases, Ciampoli said, are not about the eligibility of voters but about the eligibility of candidates to claim a residency in order to file as a candidate for office.
In fact, one Democratic attorney said that Judge Brands was correct when he allowed access to the ballot application, although Brands did not address the question of what route could be taken to revoke a vote once the application was reviewed. The Democrats are still of the opinion that individual voters can only be disenfranchised by a criminal action filed against them. That doesn’t mean, as Ciampoli said, these voters cannot be “squeezed in their wallets” without needing to sue them.
But for the near term, when will the vote be official? When, according to Judge Brands’ order today, the New York State Board of Elections certifies “the candidate whom it determines has the greatest number of votes in the special election conducted March 31. . . .” Is the election in doubt? No. With Scott Murphy’s lead now at 399 votes, Tedisco would need to poll more than 450 of the estimated 500 absentee ballots left to be counted in order to win, and everyone—even the Tedisco camp—acknowledges that is a bridge too far.
Don Moore is a writer and communications specialist living and working in Hudson, New York. Among his career turning points are stints as an education journalist, congressional staffer, arts administrator and lobbyist, and higher education communications and development manager.