ALBANY—Despite a recent spate of negative developments, Assemblyman Jim Tedisco’s legal team thinks there may be an opportunity to change a court ruling rendered against them Wednesday—part of the ongoing fight over paper ballots in the race between Tedisco and Democrat Scott Murphy for the Kirsten Gillibrand House seat.
Wednesday’s ruling essentially said that the campaigns don’t have a right to contest applications for absentee ballots once the ballots have actually been issued by the county board of elections. If the ruling stands, it would render moot most of the Republican-issued challenges to the status of absentee voters, and could preclude any remaining possibility of the Tedisco campaign catching up to Murphy, who as of this morning stood 264 votes ahead.
The Republicans appear to have two options: they can ask the judge who issued the unfavorable ruling for a clarification that might change its practical application, or they can appeal the decision in Appellate Court.
The Tedisco side’s argument will hinge on the case of Jacobs v. Biamante, which was cited by Dutchess County Supreme Court Judge James Brands when he ruled on Wednesday that providing campaigns with copies of applications for absentee ballots is not specifically required under election law.
The Jacobs case had said that campaigns were entitled to names of voters who had requested absentee ballots before the date of a special election in the 7th State Senate district. Tedisco’s campaign (and, to a lesser extent, the Murphy campaign) has been contesting already-completed applications after the election.
“We’re ready to clarify that,” Tedisco’s attorney James Walsh told me by phone.
The principal effect of this challenge, if it is upheld or even seriously entertained, would be to draw the process out by requiring that each of the ballot objections be processed individually by the court.
Regardless of how many contested ballots are counted in the end—there are at least 1,300—Murphy is holding a lead that is more likely than not to grow after the last ballots in Warren and Dutchess counties are tallied. It will be hard for Republicans to overcome that.
But in court, Walsh argued that since both sides have objected to some ballots, meaning that the tally of as-yet-uncounted ballots could technically break either way, it didn’t make sense for the judge to interfere at this point.
The implication of his ruling, Walsh and attorney John Ciampoli had argued, is that campaigns in the future will have to object at the point of issuing the absentee ballots, raising the prospect of campaign representatives hovering over elections staffers before elections, causing a logistical nightmare.
Walsh declined to be any more specific about strategy. But it is clear that he and Ciampoli will also raise the issue of residency. Walsh is preparing a brief arguing that voters who receive some government benefit—rent-stabilization, a STAR rebate check—at one residence should not be able to register to vote at another. Republicans believe many such voters cast their ballots for Murphy. Brands is expected to make a ruling on residency sometime early next week.