Judge Brands’ ruling left unresolved the question of absentee voters—reportedly more than 200—whose ballots were challenged on the basis of residency. That question was held over for another hearing in the Judge’s 9th District Courtroom in Poughkeepsie on Monday, April 20.  The issue was argued, but Brands allowed a motion by Tedisco lead attorney James Walsh to file a formal legal brief on the issue over the weekend.

Regarding the absentee count, the NY State Board of Elections reported that, as of 4 p.m. Wednesday, the total vote in New York’s 20th Congressional District Special Election, including machine, regular absentee, and some military absentee votes, stood at Murphy 79,105 and Tedisco 79,019. All counting, including military and federal absentees, has now been completed in Delaware, Greene, Otsego, Saratoga, and Washington counties. Of the 1,874 total military and federal absentee ballots sent out by the ten Boards of Elections, only 415 were returned, and so far 179 have been counted.

According to Murphy lead attorney Henry Berger, more than 1,262 absentee ballots had been challenged by Wednesday. Of those, more than 200 were ballots that had been challenged by one side or the other and both Election Commissioners—Democrat and Republican—had overruled the objection. Those ballots were set aside because of confusion about the law and whether they could be opened without a further ruling from Judge Brands. In the case of more than 400 other ballots, a challenge was made on the basis of the original application for the absentee ballot, in effect looking at records of a voter’s application to vote absentee. In this category, in excess of 200 ballots were challenged because a voter’s residency was called into question.

In Columbia County, the count of absentee ballots—except for military and federal ballots—is over, and the final tally is Murphy 383, Tedisco 222. But there are still 272 challenges to be dealt with: 249 made by Tedisco, 22 by Murphy, and one jointly. Military, federal, affidavit ballots, and any that would be opened as a result of Brands' order on April 15 remained to be tallied on Thursday, April 16, according to Virginia Martin, Democratic Election Commissioner.

The morning’s contentious hearing seesawed back and forth for two hours. Berger sat by himself at one table at the front of the courtroom. Walsh and John Ciampoli, lead attorney for the plaintiff, Republican State Committee Chair Joseph Mondello, sat at another. Initially Judge Brands appeared to throw a softball to Walsh when he inquired, “In your opinion is everything going as well as it could?” Walsh replied that things were “very difficult, particularly in Columbia County,” but they were “going to protect the integrity of the voting system.” He pointed out that election law allows until May 15 to finish the count, then quickly added, he was “not suggesting it would go one that long.”

Brands then began to focus the discussion on the three issues of the day. First, he addressed the question of the ballots challenged and then overruled by both commissioners. Berger argued that the Court—in effect, Brands—does not have the authority to set aside election law which, he argued, clearly states that when a challenge is made and both commissioner overrule, the “ballot shall be opened and counted.” Berger offered that a court decision, O’Keefe v. Gentile, allows for such ballots to be opened and counted. A copy of the ballot is then placed in the original envelope and resealed preserving the ballot for future judicial review.

Brands asked Walsh what the problem would be in applying O’Keefe to the Special Election. Walsh wanted to come back to an argument that the court should first determine “who is an eligible voter, and once we determine that, then we open.” But the judge stuck to his view, which he wrote into his order later in the day, that O’Keefe “seems a perfect remedy.” Judge Brand wrote in his order, "This court agrees with that concept and procedure as it truly protects everyone’s rights and will cause minimal invasion of process at the board of elections.”

Ciampoli spent a good deal of his time working as creatively as he could to divert the court from ruling on underlying issues that might lead to a decision against a category of challenges. He suggested to Brands that he order the attorneys at the tables to sit down in a room and go through all the challenged ballots, either with or without the judge present, “to work out a process, possibly even to undertake a final count. The judge appeared to tend toward favoring the proposition and asked if “the three of you could go through these together?”

Walsh and Ciampoli each took a turn at bat attempting to argue that one court decision or another provided authority for Judge Brands to allow questions to be raised about the veracity of absentee ballot applications. But, again, Brands turned the arguments aside agreeing with Berger. “The [New York State] Appellate Division has given guidance. And all you are entitled to is a list of who voted.”

In his order today, Brands wrote that “in a recent decision of this [judicial] department where an application had been made seeking a copy of the underlying application, it was held that ‘. . . there is no express provision in the Election Law providing for the relief they seek…’ (See Jacobs v. Biamonte, 38 AD3rd 777). In other words, the Appellate Division, Second Department declined to extend the right of inquiry absent legislation granting to the Supreme Court such power. The court concurs and it is therefore . . . ordered that either candidate or petitioner shall be entitled to a list of applicants for absentee ballots for the March 31, 2009, Special Election but shall not be entitled to the underlying application form itself.”

Residency by second-home owners was argued but with no conclusion. In Berger’s opinion, the degree of absurdity to which the Tedisco residency challenges had been taken was to “challenge the elected treasurer of Warren County and his wife” because they were on vacation in Florida.

Ciampoli and Walsh both alleged that fraud exists if someone takes a STAR exemption for one residence while voting in another—which they allege some absentee voters did. Brand said he was sympathetic to this issue. Berger’s response to the varied approaches to residency challenges was that “when you challenge on residency what you are doing is saying a person was improperly registered." And “to cancel registration you have to file a sworn affidavit and the Board of Election must investigate and give written notice and the voter a chance to be heard.” Berger’s contention is that a residency question cannot be determined on the basis of a charge sustained with information collected by a poll watcher. He also contended that even when a voter is subject to full judicial review, as he described, the resulting cancellation of registration only affects the voter’s rights prospectively. In other words, the vote in question still stands.

The attorneys gave attention to the 1983 case known as Ferguson v. McNab where the central contention is that the right to choose a residency from which an individual can vote is based on the “legitimate, significant and continuing attachments” to a residence and that is sufficient “for purposes of the Election Law.” Berger argued that “the standard is not whether it is a primary residence but whether it is a legitimate residence.” Walsh took issue saying that “I don’t believe we can shop residency.”

In regard to the STAR exemption for school taxes, Ciampoli said that New York City puts the STAR and voting together on its website. For STAR eligibility, the City’s web site says, “The property must serve as the owner's primary residence; that is, the house, condominium, or cooperative apartment that you live in for the majority of the year and the address where you are registered to vote.”

The issue of residency was not resolved and will be discussed at length on Monday, April 20, in Poughkeepsie.

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.