Before we head into several special elections to fill vacancies, there is still one Congressional race to be decided (putting aside any election contests that are pending in the House).  That race is New York’s Twenty-Second District.   What is happening in upstate New York is (and should be) an embarrassment.

The problem in the race is absentee ballots and “affidavit ballots” (what most states call provisional ballots).  In New York, the duty for canvassing such ballots — determining which ones are valid and counting them — falls on county boards of election.  If a candidate disagrees with the ruling of the board of election, the candidate can object to that decision and file a petition with the local “supreme court” (the trial court in New York).  The board of election is then required to make a record of the objection and submit that ballot to the court for review.

In conducting his review, the trial judge found that all of the county boards (eight counties are fully or partially in the Twenty-Second District) had failed to handle the canvass process properly, but the biggest failures have been in Oneida County.  Originally, the Oneida County Board simply rejected all affidavit ballots without even examining them.  The trial court had ordered the board to actually canvass these ballots.

More recently, it has come to light that the Oneida County Board simply sat on approximately 2,400 voter registration applications in the weeks prior to the election.  (New York has two deadlines — one for the registration to be submitted and another for the Board to process those registrations.  The Board did not process any applications received in the last two weeks before the registration deadline.)  Thus, there are voters who should have been registered to vote who showed up on election day to find that they were not on the list.  Some, but not necessarily all, of these voters cast affidavit ballots.  This past week, the trial court issued an order related to these ballots.  Prior to that order, the two candidates had made arguments.  The Republican candidate, Claudia Tenney, had taken the position  that since none of these people were registered as the Board had not completed the registration process.  The Democratic candidate, Anthony Brindisi, was seeking the counting of some of these votes (specifically those that his campaign had identified).  In his order, Judge Scott Delconte rejected both positions.  Instead, consistent with New York and federal law (the Motor Voter Act), Judge Delconte found that people who timely registered though the Department of Motor Vehicles were validly registered.  As such Judge Delconte ordered the Oneida County Board to review its affidavit ballots again and compare them to the unprocessed registration forms.  Barring some other basis for rejecting those ballots, any vote cast by a voter in this group should be counted.

In addition to this group of ballots, Judge Delconte has been reviewing the objections made to the canvassing in other counties, and the parties have made arguments.  Based on the news reports, as is typical in races like this one (remember Minnesota in 2008-09), the objections appear to fall into certain groups.  As such, Judge Delconte is expected to rule — probably this upcoming week — on which objections have merit.  With any luck, by the end of the week, we will know which additional ballots are being counted and should have a final count (although the count may go into early February).    The last unofficial count had Tenney up by 29 votes but, between the 1,200 affidavit ballots from Oneida County that Oneida County will be reviewing again, and the 1,100 ballots from the other seven counties that the judge is considering, there are probably enough votes outstanding that either candidate could win when all of these votes are counted.

More than the nonsense being spouted by Trump supporters, the race in the Twenty-Second District reflect the real weakness in the U.S. election system.  Unlike most other countries, the U.S. has a very decentralized election system.  That means that there are multiple places where things can go wrong.  For the most part, these errors have little impact on who wins the race.  For example, even if there are 1,000 votes that were mistakenly omitted from the final counts in the other races that have been certified involving Oneida County, those votes will not alter who won any of the other races.  But that means that mistakes like this are simply not detected.  For all the complaints that we get from the other side about fraudulent votes, there are potentially more votes erroneously rejected by the Oneida County Board of Elections than there were fraudulent votes nationwide in the 2020 elections.  In short, we should be devoting our resources to fix these types of problems rather than making voting harder as the Republicans are trying to do in states like Georgia.