SYRACUSE, N.Y. (WBNG) - Five boxes sat on a table in an Upstate New York courtroom Tuesday. Their contents, filled with approximately 1,500 uncounted affidavit ballots which could help decide the outcome in New York's 22nd congressional race.
It's in one of those boxes which Oneida County Board of Elections Commissioner Rose Grimaldi said should be full of ballots with sticky notes on them - denoting objections & challenges.
"There's no sticky notes," New York Supreme Justice Scott DelConte said. It appeared the court was having trouble finding the box with sticky notes - only 5 boxes were on the table.
The justice wanted to see the box because inside should have been about 100 ballots Democrat Anthony Brindisi's team wanted counted. With the overall race separated by just a couple hundred votes - with Republican Claudia Tenney in the lead over Democrat Anthony Brindisi at the time of the hearing, the ballots could make an impact. Updated numbers Wednesday showed Brindisi with a 13 vote lead.
The court never gave an update Tuesday about whether or not further efforts to locate the 100 or so Oneida County ballots were successful. It was the second substantial issue with Onieda County’s ballots in as many days. Day one was the absentee, day two was affidavits. In both cases, missing sticky notes leaving a number of questions,.
Grimaldi said they tracked which ballots received objections by placing them in boxes. They only made notations on ballots themselves if they were rejected, she said.
When pressed about what color the sticky notes should be, Gremaldi said she wasn't sure because she wasn't in the room most of the time. She said she could only testify as to what the poll workers were instructed to do.
Under New York State election law, ballots that have been objected by election commissioners or that have been challenged by the campaigns must be marked in ink specifying what the challenge or objection is. Multiple NY-22 counties haven't been following that procedure, as it became apparent in court.
Like the outcome of if court officials were able to find those ballots, the outcome of New York's 22nd congressional race remains unclear
At the end of more than 7 hours of court proceedings Tuesday, Justice DelConte made a decision which will delay a final result in the race until next week.
He issued an injunction preventing counties from certifying the results of the NY-22 elections until further notice. The decision doesn't impact the certification of the presidential result races.
A deadline of Monday at 5 p.m. was set for the next round of motions in the case to be filed.
The Tenney campaign lawyer originally requested the delay and proposed the Monday motion deadline. In response, the Brindisi team did not take a position.
The injunction came after two days of court proceedings which uncovered inconsistencies in how county board of elections followed election law.
One of Oneida County’s Board of Elections commissioners testified Monday there was no way of knowing which absentee ballots - which were before them in court - had been counted in the original count, and which had not been. This left with the court with a major problem, if they were to take an absentee ballot and decide it should be counted or not counted, they would have no way of knowing if they should be changing the overall vote total.
County officials said they used sticky notes to denote issues. That mean for every ballot which has an issue - there should be a sticky note indicating the problem with the vote and why it was counted. Making it impossible for the court to know if a ballot had been counted was the fact that a large number of ballots which supposedly had issues simply lacked sticky notes.
The Democratic commissioner swore under oath that each ballot had a “sticky” when they sent it in.
Just like on Tuesday, it appeared live in court that those “stickies” must have disappeared.
When asked how the court should determine if these ballots were previously included in the counting if they don’t have a sticky, the commissioner responded, “You can’t.”
DelConte responded "we have a serious problem on our hands."
It’s on top of DelConte’s frustration with the Oneida County Board of Elections over a lack of standardized reasoning for their rejections
The issue of whether or not a ruled-upon ballot would change the overall count arose after DelConte ruled Monday that any ballot with marks outside of the circle, but within one candidate’s box, will be considered a valid vote as the intent is clear.
Some counties in NY-22 handled objected ballots differently. Madison County used a spreadsheet to make record of each of the objected or challenged ballots, with who objected to them and what the problem was.
But even in Madison, problems arose. The accuracy of the spreadsheet fell into question Monday when Justice DelConte grew irate over each of the individual ballots not being marked separately.
New York State election law makes clear that each ballot needs to be individually marked with the objections and if they were counted.
By Tuesday morning, a lawyer for Claudia Tenney’s team had submitted a legal brief that asserted because the local BOEs failed to individually mark ballots, the court has no right nor ability to review them.
At the open of court Tuesday, DelConte said it wasn't clear for some ballots what the objections are and it wasn't clear if some ballots had been counted or not. Perhaps, he said, about 100 votes separated the candidates. People deserve a just canvassing process, he said.
The focus Tuesday became just trying to figure out if remaining NY-22 counties had followed correct procedures. Justice DelConte wanted to do this before taking a look at specific ballots - as he had done Monday.
Chenango County officials were first up. They were asked how exactly they made note of challenges on ballots.
Hearing their testimony Justice DelConte said, "this testimony is frankly confusing."
He pressed them, asking if objection notations were placed directly on all the ballots. Chenango officials admitted the notations aren't on ballots in all cases.
A lawyer from Tenney's campaign at one point held up a stack of an undetermined 12 ballots from Chenago County. Some ballots had sticky notes on them. Some had multiple sticky notes.
For Chenango County, the court heard from witness Lucy McIntosh - Brindidis’s campaign manager. As a poll observer, she had objected to about a dozen ballots going uncounted because the voter she said wasn't given a chance to cure their ballots.
Ballot-curing is a process where voters are given the chance to make an easy fix to a ballot which is left with a mistake.
In MacIntosh’s case, she said most ballots either had a no signature or a signature mismatch.
The justice focused in on whether the election commissioners had noted the objections that had been made.
Providing Updated Tallies
Early Tuesday, Justice DelConte ordered the counties to provide the Tenney and Brindisi lawyers an updated count of scanned and hand-counted votes by the time they left the courtroom at the end of the day. The justice stressed the importance of having the information at that stage of the case as well as how long the campaigns had been pressing for the information.
Just under 2 hours later, attorneys said they were still waiting on tallies from counties including Cortland, Chenango, Madison, Herkimer and parts of Oneida
Justice DelConte then had a tense exchange with Oneida County officials where he again asked for the totals. The Oneida election official said the issue they are running into is that the hand counted ballots weren't separated from other ballots.
Another Oneida County official, Rose Grimaldi, added they aren't done counting. "We will do our best to be done tomorrow," she said
Meanwhile, Chenango County officials told lawyers that they can't send the totals electronically and they would instead try faxing them.
Later, a lawyer for one of the campaigns said the fax with vote totals was unreadable. The lawyer asked about scanning them to send via email & Chenango officials replied they can't because of a ransomware attack that kept their systems down until the night before the election.
All counties were able to eventually send in updated totals, which showed Brindisi with a 13-vote lead.
Early in proceedings, Justice DelConte said he did have the authority to order a recanvass if they run out of time.
A lawyer for Tenney's team suggested a recanvess might not work.
Reporters were not allowed in the courtroom where proceedings took place. Much of the case took place virtually, with the lawyer from Brindisi's team who did the majority of speaking not in the courtroom themselves. At numerous points, proceedings were delayed due to technical issues.
Reporters observed from Syracuse.
The sticky-note issue has been dubbed "sticky-gate."
Recording the proceedings was prohibited
Josh Rosenblatt contributed reporting to this article