THE ABSENTEES WILL DECIDE THE SPECIAL ELECTION

Don Moore ccSCOOP ANALYSIS 04-03-09 - The race for the 20th Congressional District seat came to a temporary halt on March 31—by no means to a conclusion—with observers from both the Democratic and Republican side predicting that the now obvious vote recounting and legal maneuvering over absentee ballots will take at least a few weeks and maybe even months.

What is known for a certainty, in a race with few certainties at this point, is that the deciding factor will be the absentee and affidavit ballots. The numbers are unequivocal. Democrat Scott Murphy and Republican James Tedisco are within as few as a half-dozen votes of each other. The total, unofficial vote count as of Thursday, April 2, stood at 77,217 for Murphy and 77,192 for Tedisco. Underscore unofficial. 

According to the best practices of a handful of the 20th CD counties, Columbia County being one of them, votes are automatically recounted. The term is recanvassed, but the meaning is the same. Those counties without an established recanvass process must start one immediately, and they will do so under the watchful eyes of many attorneys as a consequence of a temporary restraining order signed by New York Supreme Court Judge James V. Brands which requires that all voting machines be recanvassed and that all paper ballots be impounded and counted by the county Boards of Elections.

The latest figures from the state and county boards of election from the 20th CD’s ten counties are that more than 10,100 absentee ballots were sent out and approximately 6,100 have by now been received back. All absentee ballots had to be postmarked no later than March 30. Absentee ballots must be received by mail at the Board of Elections on April 7. For members of the military and federal employees the deadline was extended to April 13.

So, in effect, this race no longer involves 155,000 voters. Instead it is about the 10,000 or so—likely considerably fewer—absentee voters and whether their ballots will stand up to the extraordinary scrutiny they will encounter as the campaigns examine each and every one, looking for advantage or disadvantage for their side or that of their opponent. The first issue, say attorneys schooled in election law, is to examine the political party affiliation, or lack thereof of, of each and every absentee voter.

At this point, according to a survey of absentee ballots by the state Board of Elections, Tedisco has some modest reason for optimism. As of midday Thursday—two days after the election—6,023 absentee ballots had been received, and, according to a state Board of Elections tally of political party affiliation, Republicans account for 2,928 ballots, Democrats for 2,160 ballots, and all others for 935. These numbers could be unsettling for Democrats. What, however, must be taken into account—and what cannot be known until the envelopes are opened—are the answers to these questions: Did all the party voters vote for their standard bearer? Which box on the ballot did the unaffiliated and minor party voters check?

In the Washington Post on April 1, Chris Cillizza plumbed the usually impenetrable world of private political party polling to report that unnamed Democratic Party officials had stirred the numbers and projected Murphy would win by 210 votes. We are at the point in the campaign, while the denouement is building, where shamans and alchemy take center stage.

But is this the end of it? According to legal observers, not by a long shot. On March 30, the day before the election, New York Republican Party Chairman Joseph Mondello and Dutchess County Conservative Committee Chairman Patricia Killian requested a temporary restraining order in the New York Supreme Court in Dutchess County alleging that, in so many words, the race would be so close that mischief or incompetence or both would be afoot if all paper ballots were not impounded and counting were not undertaken under the watchful eye of the petitioner's attorneys. In fairness, it is difficult to imagine a court not being asked to intervene since New York does not have an automatic recount law. It was Judge Brands’ order that lead to placing all paper ballots under sheriffs’ protection.

The first legal hurdle, however, will be a close examination of the machine balloting. In a special election, with only one race and two candidates on the ballot, the historical likelihood of errors in vote recording is small. The lever machines used in the 20th CD may be ancient, but they are virtually fool and tamper proof.

April 6 is slated to be the starting line for the legal contest, when attorneys for Murphy join Tedisco’s legal team at the State Supreme Court in Poughkeepsie to hammer out details of the judge’s temporary restraining order. As currently written and signed by Brands, the order only permits Tedisco’s attorneys to monitor county Boards of Elections recount procedures. Little wonder. The order was drafted, giving credit where credit is due, by Republican election attorney John Ciampoli. Murphy’s team will certainly get an equal place at the table. It was by design, according to court watchers, that the Republican motion was filed in Dutchess County. Brands was elected a Judge of the Supreme Court in 2002 as the candidate of the Republican, Conservative, and Right to Life Parties.

Once the first round is over, the challenges will begin, first to the certification of affidavits. These are ballots provided to voters who showed up at the polls on Election Day believing they were properly registered but whose names did not appear on the voter rolls. It is not known at this time how many of those ballots exist and were impounded along with the absentee ballots.

Then the meat of the action begins—when both campaigns examine not the absentee ballots but first the envelopes in which they are sealed for mailing. If any errors appear on the envelope, the ballot may be challenged. Why? Each side will have lists of registered voters and may decide that a voter from the other party is worth challenging only because it is likely a vote for their opponent.

A few instances of close elections are notorious: the struggle over the hanging chads in Florida during the 2000 presidential election, and more recently the Coleman-Franken race for the U.S. senate in Minnesota where after five months the outcome remains unresolved. Other, more mundane local disputed elections come before courts regularly, as they have before Judge Brands.

There is a touch of irony attached to the contest’s final phase. This race, where so much has emerged about the candidates and the issues in such a short period of time, where it is difficult to imagine making an informed decision without being in the crucible of the television ads, the robo calls from Bill Clinton and Pat Boone, the dark foreboding mailers, the anger and the charges, the debates and almost debates, the intelligence and the hope, the young people knocking on doors—this race will be decided by a relative handful of people, many of whom didn’t live through that with us. Maybe media is enough. Maybe you didn’t have to be there. But maybe you did. In any event, when all those envelopes are finally opened, we will learn a little more about ourselves.

There is also an inordinate amount of spin spinning around in the political atmosphere over this special election. It has been described as a referendum on almost everything or, now that the unofficial results are in, a referendum on nothing. It is the beginning of a new time, or the end of days. It is arguably far less about those conclusions than it is about the character of this Congressional District, about how its people perceive their fears and aspirations. 

The 20th Congressional District, as is becoming increasingly understood locally and, yes, nationally, is a classic swing district. It is not a majority Republican District, unless only Republicans and Democrats are counted. It certainly is not a majority Democratic District, unless the last few elections are counted. In its sprawling, 200-mile length, it is a very good weathervane for the expression of a nation that can only be adequately illuminated in the heat of an intense, closely fought local political contest. There is something true about the split decision that happened here—true to the people of the district and true to the character of our political culture. This special election has changed how our slice of “upstate”—the piece bounded by the outlines of these ten counties—is seen. Regardless of the outcome of the election, that is unlikely to change for a long time.

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.