Campaign Diaries

A week after issuing a decision that invalidated most of Jim Tedisco’s challenges, Judge Jim Brands backtracked and agreed with Republicans that he was relying on faulty use of precedents. (See this post for more information on the GOP’s argument.) Brands had initially ruled that a voter’s absentee ballot application cannot be used as grounds to challenge his absentee ballot; today, he ruled that Tedisco is entitled to review those applications.

Had Tedisco not be allowed to use these applications as evidence, most of the challenges his camp issued during the absentee ballot count would have been invalidated. But Brands has now given him a chance to argue for the exclusion of hundreds of absentee ballots. On a case-by-case basis, Republican lawyers will have the opportunity to ask the judge to toss out a ballot.

As to why Republicans thinks that getting ballots tossed out will be good news for Tedisco, that remains a total mystery to me. In Minnesota, Norm Coleman spent weeks arguing against the inclusion of new ballots. Yet, the situation changed once Al Franken took the lead: Republicans recognized that their only path to victory was to expand the universe of valid ballots and thus demand that thousands of additional votes be counted. The situation in NY-20 started out similarly: Just like Franken, Murphy took a decisive lead after Republicans had clamored against the inclusion additional ballots. But the parallel stops there.

The GOP seems to have missed the memo that Tedisco is now trailing and that getting ballots tossed out only lower the odds of a Tedisco comeback. (I explain this in more detail below.) Unless Republican lawyers now have bigger fish to fry than Tedisco’s victory…

Today, Murphy further expanded his lead

Judge Brands’ ruling did not correct the other major decision he delivered last Wednesday: A ballot should be counted when election officials unanimously overrule a poll watcher’s objection. Today, Warren County counted such ballots and the results were a dramatic boost for Murphy: Out of 131 ballots that were counted, he won 111. 20 went for Tedisco. Combined with a gain of one vote in Essex County, Murphy’s lead was boosted from 273 to 365 votes.

This is first and foremost confirmation that Tedisco’s camp challenged far more absentee ballots than his opponent - and that many of its objections were frivolous enough to be overruled by all election officials. It also further lowers the odds of a Tedisco comeback: There are still about 1400 challenged ballots to be considered and Tedisco needs to net 365 votes to overtake Murphy’s lead. If all these ballots are accepted, the Republican can win the election by receiving about 63% of the challenged ballots. That’s up from the already too high 58% Tedisco stood at on Friday. Needless to say, Tedisco is clearly headed towards a defeat.

Here’s the obvious catch: The more challenged ballots are tossed out, the higher a percentage of those that are included Tedisco will need to win. For instance: If 400 challenged ballots are deemed invalid, Tedisco would need to receive more than 68% of the remaining 1,000 ballots. Why, then, would Tedisco try to stop challenged ballots from being included?

Sure, the challenged ballots are likely to boost Murphy further. Sure, as I calculated on Friday they have been disproportionately cast by registered Democrats. Sure, it would take a miracle for Tedisco to pull off a comeback thanks to these ballots. But the miracle becomes increasingly inconceivable with each ballot that is tossed out, thus reducing the pool of votes Tedisco can rely on to close the gap!

Looking for an explanation to the GOP’s desire to toss out ballots

The first hypothesis I have is that Tedisco still believes victory is possible and that the only path is to pull off a massive deception: He could have a chance if hundreds of challenged absentee ballots cast by registered Democrats find themselves tossed out while most challenged absentee ballots cast by Republicans make their way to the final count - all of this under the cover of a “case by case” examination of the votes. But Murphy’s lead is too great, and the pool of challenged ballots skews too greatly towards Democrats for such a maneuver to make any sense.

The second hypothesis, then, is that Republicans have given up on victory and that they are only looking to establish legal precedents that could serve them in the future.

As was reported in detail last week, GOP watchers in some counties systematically objected to absentee ballots from voters who hold a secondary residence in New York City and in Florida, as well as those sent in by college students. On its face, this is a frivolous challenge as voters who have more than one residence have the right to choose in which district they will cast their ballot; but Judge Brands has essentially questioned that premise by ruling that a case-by-case examination of absentee ballot applications are in order.

It is more than probable that Tedisco will lose even if the GOP’s legal strategy is successful; but for Brands (who has a history of boosting GOP candidates in election contests) to rule on the side of GOP lawyers on a number of ballots they want thrown out could set the stage for Republicans to later challenge the eligibility of voters with residency ties to Democratic areas, the eligibility of students who come from other parts of the state or of the country or the eligibility or 91-year old woman who write that they are too old to go to the polls on their absentee application form.

In a way, NY-20 features the opposite situation as in Minnesota’s Senate race. There, a Coleman victory could set a precedent for expansive use of “equal protection” that Republicans would undoubtedly come to regret; here, Republicans could lose the election but lay the groundwork for legal arguments they will use later.