This new petition is the same as the old petition in many ways—identical language, identical even in page length (28 pages, but who’s counting?), both filed by New York Republican Committee Chair Joseph Mondello and Dutchess County Conservative Party Chair Patricia Killian. However, the new petition is verified by the candidate himself, James Tedisco, meaning that he read and understood the contents of the filing. Such a petition needs to argue that some irreparable harm may occur without the court’s intervention, and both the old and new petitions argue that matters have gone so wrong that Judge Brands should order the State Board of Elections “to certify the name of . . . James Tedisco as elected” to be the 20th District’s Congressman. Just like that.

Where the Tedisco petition departs from the Mondello petition is that is it argues the State Supreme Court’s “intervention is needed to preserve [Tedisco’s] rights, and to prevent the Respondent Murphy from fostering a fraud upon the public and perverting the administrative process in his zeal to secure elective office for himself.” Them’s fightin’ words, and some very wild accusations. Are those charges supportable in fact, or are they, as experienced Democratic poll watchers argue, made to bolster the spirits of an ever more shrinking Republican political base?

But beneath the smoke, Tedisco, according to election lawyers, is trying to relight a fire. He is looking for an opening to reargue the decision of Supreme Court Judge James Brands, issued Wednesday, to deny Republican challenges to a large number of absentee ballots on the basis of a supposedly faulty application for an absentee ballot or voter registration. It’s one of those “do the math” issues. According to the State Board of Elections Friday, the best guess is that there are between 800 and 1100 disputed absentee ballots left to be ruled on. Also, the State Board published its final unofficial tally of all machine, absentee, military, and affidavit ballots showing Murphy with a 273 vote lead over Tedisco: 79,839 to 79,566. That will be the final count until Judge Brands determines what to do with the disputed ballots next week.

Some county Boards of Elections, specifically Columbia County according to its Democratic Commissioner, have already acted on Brands’ Wednesday order by opening 49 absentee ballots where both election commissioners had overruled an objection. So the gap is narrowing. The question is, does that help or hurt the Tedisco strategy? And the Columbia County action means that, yes, the vote of our junior U.S. Senator Kirsten Gillibrand was counted on Thursday.

Initially the Tedisco strategy, described by one Democratic activist, was to identify and successfully challenge as many likely Murphy voters as possible. If the challenges work, then the strategy works. But if the challenges are defeated, then the strategy backfires, as is likely the case now. With all machine and unchallenged absentee and affidavit ballots counted, Tedisco’s troops have managed to create a large pool of ballots yet to be counted that almost everyone believes are for Murphy.

This is why, for example, Nate Silver, political statistics guru of the web site fivethirtyeight.com, projected Murphy the victor by about 550 votes, but not with complete confidence. In sum, Silver says the Tedisco strategy will backfire—

almost certainly. He is counting Tedisco down—but not out.

A note about the savvy of the Republican attorneys. According to election lawyers, the main reason the Tedisco suit was filed was because his legal team overlooked a requirement of the election law: only candidates in an election are eligible to file court challenges, such as in the question of preserving ballots or pursuing questions about challenged ballots. Would Tedisco’s team have come to the same conclusion on their own? That’s an open question. The Murphy legal team’s answer to the original Mondello show cause order pointed out that Mondello and Killian did not have standing to pursue remedies under key sections of New York Election Law. Only Tedisco himself does. 

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.