JUDGE RULES AGAINST TEDISCO, ORDERS RECOUNT OF 20TH ABSENTEES TO PROCEED   Don Moore ccSCOOP News 04-07-09 - After a morning of respectful sparring among attorneys for 20th Congressional District candidates Scott Murphy and James Tedisco in New York State Supreme Court in Poughkeepsie, the judge hearing the case, James V. Brands, handed the Tedisco camp a defeat when he ruled against its arguments to delay counting all absentee ballots until April 13 and ordered that counting begin immediately for non-military and non-federal absentee ballots.

Brands’ order, issued late in the afternoon of April 6, also confirmed that the machine recounts be completed. The original show cause order led some counties to stop any recounting. Attorneys’ statements at the hearing indicated that, by Monday morning, six of the ten counties (Delaware, Essex, Greene, Otsego, Washington, and Warren) had not completed or in some cases had not even begun recounting their machine votes. Columbia County’s Board of Elections had completed its machine recanvass by the end of the day Thursday, April 2. Virtually every vote cast at the polls in the March 31 Special Election was recorded on a lever voting machine.

In an earlier federal court consent decree between the U.S. Department of Justice and New York Governor David Paterson, an agreement was reached that extended the deadline for receipt of military and federal overseas absentee ballots until April 13. Tedisco lead attorney John Ciampoli argued that the consent decree covered all absentees. Murphy attorney James Berger argued that the agreement did not cover non-military and non-federal absentee ballots and that the interests of the voters and New York election law required an expeditious count. 

Brands agreed with Berger writing that “it is difficult to imagine that it was the intent of the federal government to delay canvassing of absentee ballots which are not included within those defined under the consent decree. The whole premise of the consent decree was to ensure that those abroad who want to exercise their right to vote are not disenfranchised by an artificially short turnaround time with their ballots. In order to have the votes counted in an orderly fashion, it would make sense that the canvassing of those absentee ballots other than those particularly identified should commence on April 8, 2009, rather than sit in storage for another six days.”

According to election lawyers, the Tedisco camp’s arguments for delay are as much about tactics as they are about the law. The idea is to delay the absentee count, which is in actuality to delay the opening of sealed absentee ballots, so that a list can be assembled of voters the Republicans want to challenge. Evidence for this was circulating in Columbia County, where Murphy prevailed in the March 31 balloting and where more Democrats, 677, requested absentee ballots than did Republicans, 365, with two confirmed reports that Democrats with absentee balloters in their families were called and asked how the absentees voted. In addition, reports are circulating in other news and Internet blog sites.

The inside story on absentee ballot envelopes is that the voter’s name is on the envelope, not on the ballot. So any challenge to that voter, for whatever authentic or spurious reason, must be lodged prior to opening the envelope because the ballot itself bears no identification of the voter. Once the ballot is opened, and the ballot itself removed and examined, the vote must be counted. The purpose of this well-established procedure is to protect the basic right to a secret ballot. 

What happens next? Absentee counting can begin on Wednesday. How far it will get is anybody’s guess. Once a county board of elections completes its official recount of the machine ballots, all under the watch of attorneys from both sides, then the county can begin counting the absentees. This is where the attorneys and the party people who provide them with information on voters earn their pay. And this is where the process can slow down. Will the Tedisco or Murphy camps have reams of challenges? 

The lore among Democrats is that Republicans challenge absentees where Democrats on do not. Time will tell. Will there be challenges and will they be unresolved, consequently set aside, and then taken before Judge Brands to be argued individually? Time will tell. The next time the Judge expects to see the attorneys for a scheduled appearance to check in on the progress of canvassing will be Monday morning, April 13.

The well-respected political poll analyst, Nate Silver, from the web site fivethirtyeight.com, has published a review of the absentee returns and projects that they favor Murphy over Tedisco. “While nothing's for sure yet, things are starting to look a bit difficult for Tedisco”  is Silver’s prognosis one day before absentee ballots are examined.

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.