Here’s a fun footnote to the Tedisco campaign’s challenge of Sen. Kirsten Gillibrand’s absentee ballot in the special election for her old House seat. It turns out that even if the GOP’s reason for objecting to the ballot is true, the governing case law in New York says the ballot still should be counted.
The issue here is that New York requires absentee voters to have a good reason to vote this way rather than on Election Day — in this case, Gillibrand planned to be outside of her home in Columbia County, voting at the Senate in Washington. But the GOP claims she was in the district anyway, seemingly rendering her excuse for a ballot null — that she should have gone to the polls to cast her vote there, they say.
Gillibrand spokesman Matt Canter says she was not in the district at all on Election Day, but only arrived that night after the polls closed. This can get a bit confusing, so pay close attention: Gillibrand started the day in Albany (outside the district), went down to Washington to cast votes as she’d intended (and it turned out she missed the votes, arriving after they were held), then travelled to the district, arriving after the polls had closed to attend Murphy’s Election Night party.
But what if she really was in the district? It turns out she’s still covered, provided that she’d honestly expected to be out of her county, and things just worked out differently.
State Board of Elections spokesman John Conklin explained to me how it works. “Well, the lower courts have ruled that if you cast an absentee ballot based on your expectation of being out of the county, and you’re subsequently in the county, you can let the absentee ballot stand,” said Conklin. “The intention is good. Or you can vote on the machine, and part of the absentee re-canvass process is that when the envelope comes back they check to see whether the person did vote on a machine on Election Day.”
So even assuming that Gillibrand was in the county while the polls were open, why would the Tedisco campaign still challenge the ballot, if case law says her original intention of being out of the county was good enough?
“The person advancing that argument may be hoping the highest court in the state may change what’s been ruled in the lower court,” said Conklin. “That’s not been litigated by the highest court in New York State.”
When asked for further comment, Canter told me: “I would echo the Senator’s comments that it’s disturbing, how the Republicans are using these stalling tactics to disenfranchise legal Democratic voters.”
