ALBANY—The ballot-counting in the race to replace Kirsten Gillibrand in Congress will likely go on for a long time, in light of a court ruling just issued.
Judge James Brands declined to set a specific standard regarding valid residency, and said that objections lodged on the basis of ballot applications will, indeed, stand. While Democrat Scott Murphy leads Jim Tedisco by 273 votes, according to the latest official tally, there are some 1,800 votes left uncounted.
This ruling favors the Tedisco camp—or at least buys them time.
Brands clarified an earlier ruling by saying that applications for absentee ballots were correctly provided to both campaigns, and that objections to ballots lodged based on these applications do stand.
"Common sense dictates that in order to intelligently form a decision as to whether an objection should be made, the application's content must of necessity be perused," Brands wrote.
Regarding the issue of valid residency, which Tedisco's lawyers have argued to construe narrowly to a "primary residence" within the district, invalidating any voters who claim a STAR exemption or rent stabilization in some place like Manhattan, Brands said this will be determined one ballot at a time, a process which would drag.
"There is no single factor that is determinative in this regard and our courts have recently said that … the crucial determination whether a particularly residence complies with the requirements of the Election Law is that the individual must manifest an intent, coupled with physical presence without any aura of sham. (Matter of Hall F. Willkie v. Delaware County Board of Elections, 55 AD3d 1088.) It is apparent therefore that this area of inquiry will be determined on a case by case challenge should it be necessary when all other votes have been cast and canvassed," Brands wrote.
He also ruled that the so-called O'Keefe procedure should be used to count ballots to which one campaign has objected, but elections officials have both overruled. This process counts the ballot but preserves a photocopy for future challenges.
Both campaigns will meet in Albany Thursday to count some 200 votes laid aside because of objections based on how the actual ballot was marked. A further counting schedule will be set during a court appearance Monday.
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