Absentee Ballots: Which Count?

The daily dribble of news upstate in the 20th district recount “drama” brings two interesting posts. Nate Silver at 538 does one of his masterful number-crunching jobs to predict that Democrat Scott Murphy will eventually prevail by about 540 votes over Republican Jim Tedisco. What’s really interesting there though is Nate’s take on the Republican’s jaw-dropping challenge of Kirsten Gillibrand’s absentee ballot. He thinks it will make it harder for Tedisco to mount a rematch if Murphy wins. Maybe but Nate may be getting ahead of himself on this one.

You’ll recall that Republicans have been challenging nearly every Democratic absentee ballot throughout the district, notably focusing on second-home owners in Columbia County who had their ballots mailed to New York City addresses. As we showed Tuesday, the only problem with that argument is New York’s courts have ruled repeatedly that second home owners have a right to vote in the locations of their second homes.

Then came Tedisco’s challenge to Gillibrand’s ballot. Remember Gillibrand held this very House seat until twelve weeks ago when she was appointed to fill Hillary Clinton’s vacated Senate seat. Tedisco says the ballot isn’t valid because she showed up in the district Election Night at Murphy’s “not-yet-a-victory” party and therefore should have voted in person.

Unfortunately for Republicans the law is pretty straightforward — one must have a “good-faith” belief that one won’t be able to cast one’s vote in person — since Gillibrand is a Senator and the Senate calendar can change that seems like a pretty “good-faith” reason for voting absentee.

So Nate thinks Tedisco’s challenge could backfire should Murphy win and Tedisco want a rematch in 2010. While that’s certainly possible it’s worth remembering that New York voters are used to this kind of thing. The nation may think what happened in Florida in 2000 or Minnesota in 2008-09 is rare, these bloody battles are commonplace here. A State Senate seat in Queens voted on in November wasn’t finally decided until early February. Another seat in Westchester took three months to sort out in 2004. So New Yorkers are pretty jaded when it comes to long drawn-out ballot counting fiascos. If Tedisco loses and wants a rematch his biggest problem won’t be the way he fought absentee ballots but rather the changing nature of the district.

The other interesting post comes from Jimmy Vielkind at Politicker who gets a quote from the guy who eventually won that seat in Westchester back in 2004 by 18 votes, former State Senator Nick Spano. Spano notes that it’s always better to be up in the count before you appear before the judge who will be deciding which ballots to count and which to set aside. That puts the burden on the judge to open him or herself up to criticism that he or she “overturned the will of the people.” Gotta love NY politics.

Of course there’s also some conspiracy theory action going around — in this case over Supreme Court Justice James Brands who a local blogger writes up as a pretty questionable character when it comes to election decisions involving his fellow Republicans. Brands is the one who will decide which ballots get counted and which don’t. If he ends up discarding enough ballots to give Tedisco the win this case will end up in the state’s appellate courts which are — believe it or not — highly regarded for being fair.

So Murphy gets seated in June? Maybe he and Franken can have a victory lunch together since they’ll both be arriving about the same time at this rate.