| The usual process goes like this:
(1) People vote on election day.
(2) The results are reported to the Boards of Election (BOEs) by election inspectors, with campaign reps present when the machines are open if they choose.
(3) "Machine" votes are recanvassed within a couple of days of the election to make sure no errors were made. Campaign reps may be present.
(4) Absentee/military/oversees ballot envelopes are reviewed by the BOEs to ensure that there are no voters who sent in a ballot who also voted on the machine, and that they are only counting those which arrived with a timely postmark.
(5) Campaign reps may be present when the BOE meets to open these ballots. They can challenge ballot envelopes before they are opened, stating a reason why they are challenging. Two election Commissioners (one from each party) rule on the challenges, with a tie vote going to the voter. If a challenge is denied, the campaign reps may indicate a formal intent to appeal the Commissioner's rulings in court, in which case the ballot envelopes are set aside. If the campaign does not file in court within a short deadline, they are opened; otherwise, they are held pending a court's review. Filings in court must present detailed evidence as to the basis for why a voter's ballot cannot be counted (i.e., more than "we don't think they live there").
(6) Those ballots which then get opened are separated from the ballot envelopes, and may be similarly challenged on the basis of what appears on the ballot, e.g. because an "X" is outside the box, there are stray marks or writing on the ballot. The challenge process follows the same format as in (5) for unopened ballots.
(7) At this point the BOEs will have a tally of all the votes cast, and then (if court papers are filed) await a ruling from the Court as to which if any of the ballots challenged to count.
But in Tedisco's case, his campaign decided to pre-empt and upend this entire process -- by going to court before a single vote had been counted. They decided not to wait and see whether their challenges were upheld, but to file ridiculously early.
The only evident advantage to causing this chaos in the normal and sensible execution of the Election Law was to choose the court in which they wanted potential (rather than actual) grievances heard. They did so in a court where Tedisco's lawyers had had unusual success in the past in filing specious challenges to absentee ballots (Ciampoli was 3-for-3 in his last filing with Judge Brands). Though he could not be certain that Brands would be selected, Ciampoli clearly knows the ropes of this court well enough to be reasonably certain to get either Brands, or at worst another friendly judge in that court.
Moreover, pace the Tedisco camp's spin, I know of no reason under the law that one must include in such filings the request that one be certified the winner. In theory, one could go to court to challenge a vote count even if the outcome would be the same.
Why? Because in this country, our election laws do not say that election officials must get the vote count "accurate enough" to reasonably ensure that the right person won. Rather, our laws say that every legitimate vote must be counted, and counted accurately. If you ran against someone for Dog Catcher in Podunkville and the BOE said you lost 100-1, when in fact you lost 61-40, you would still have a right to go to court to insist on an accurate count.
But what we cannot afford in this country is this type of pre-emptive election lawsuit from any and all candidates who think there is an off-chance of the vote being close. The system is not designed to operate in this way, and this type of egregious legal posturing only creates confusion, while encouraging tendentious challenges and general vote-count obstruction.
NOTE: I have not even begun in this diary to discuss the even more unusual and offensive specific tactics deployed by Tedisco's lawyers, such as their broad-brush challenges to virtually all Democrats (but not Republicans) who fit certain profiles, such as college students, or home owners who received their absentee ballots in New York City. These have been discussed in depth elsewhere; suffice to say here that the noxiousness of this tactic is commensurate with the rest of Tedisco's abuse of the electoral process thus far.
CONCLUSION: By filing and re-filing this bombastic suit, including the demand to be declared the winner, Tedisco's actions ought truly to offend the sensibilities of anyone who believes in lower-case "d" democracy. This should not be a partisan matter. Tedisco's second filing (ironically necessitated by his lawyers' evident flubbing of the first piece of obstruction) should rightly be decried, if we do not want this heavyhanded approach to become the norm in American politics. |
