Last remaining Queens Assembly race continues in court with recount looming
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The race for Assembly District 23 between incumbent Assemblymember Stacey Pheffer Amato and Republican Thomas Sullivan has come down to the validity of a little more than 90 invalidated absentee ballots. Pheffer Amato’s attorneys argued in court on Thursday that the ballots should be counted. AP file photo by Mary AltaffeR
By Jacob Kaye
It’s been nearly a month since the polls closed in the 2022 general election in New York State – but one race in Queens remains very much up for grabs.
Just three votes separate incumbent Assemblymember Stacey Pheffer Amato and Republican challenger Thomas Sullivan in the race for Assembly District 23. With Sullivan in the lead and the race bound for an automatic hand recount, the incumbent and her attorneys have embarked on a mission to ensure that every vote cast in the race is tallied.
In that vein, Amato and her attorneys appeared in Queens Supreme Court, Civil Term on Thursday before Justice Joseph Risi as part of a lawsuit they recently filed against Sullivan and the city’s Board of Elections.
At the center of the suit are 94 absentee ballots that were previously deemed invalid and rejected by the BOE. While Pheffer Amato’s attorneys argue that the votes should be counted – or, at the very least, given back to voters to be “cured,” or fixed – Sullivan’s attorneys say the BOE was correct in throwing out the improperly sealed ballots.
It may not seem like a large number of votes, but the ballots – which include both Democratic and Republican votes but likely sway toward Pheffer Amato – would almost certainly have a large influence on the race where around 32,000 ballots have already been counted. Not since the 2019 Democratic primary race for Queens district attorney between Melinda Katz and Tiffany Cabán has there been such a close race in the borough. The race for the district, which covers a portion of Southern Queens and the Rockaway peninsula, is also likely one of the closest race, if not the closest, in recent New York City election history.
Getting a result in the race has been anything but expedient. That was no different on Thursday.
Stephen Kitzinger, the attorney for the BOE, arrived at the Downtown Jamaica courthouse about half an hour after the case was scheduled to begin. He blamed his tardiness on another municipal entity – the MTA.
“Your delay is curable,” Risi quipped from the bench before beginning the proceedings.
On one side of the courtroom sat Sullivan and his supporters. About a dozen Republican voters sitting in the gallery occasionally let out groans in response to arguments made by attorney Frank Bolz, a powerful lawyer with the Queens County Democratic Party representing Pheffer Amato in the case.
The other side of the courtroom was far more empty. The only people sitting there were Pheffer Amato and her husband.
The arguments made Thursday revolved around the recently passed John. R. Lewis Voting Rights Act of New York, which was passed primarily to allow for local Boards of Elections to begin counting absentee ballots prior to Election Day and to allow for local boards to liberally interpret absentee ballot rules in an effort to boost voting numbers. The law, which was signed by Governor Kathy Hochul in June and withstood a legal challenge brought by Republicans, also outlines a number of new regulations surrounding the validity of an absentee ballot.
Each absentee ballot includes two envelopes – a small one to hold the ballot and a larger one to hold the smaller envelope and the ballot. Both envelopes are supposed to be sealed.
The 94 ballots up for debate in District 23 fall into one of two categories. About 60 of the ballots were placed in unsealed smaller envelopes and sealed larger envelopes. The remaining 30 ballots were not placed in the smaller envelope but sent alongside it in a sealed larger envelope.
According to Kitzinger, the BOE interpreted the law to state that if either one or both of the envelopes are unsealed, the ballot is invalid and cannot be cured. Bolz widely rejected that interpretation.
“The election law has been radically changed to enfranchise voters,” Bolz said on Thursday. “This statute was not changed to create more hoops for voters to jump through.”
Sullivan’s attorney, Adam Fusco, repeatedly called the ballots “illegal votes,” and argued that the court didn’t have jurisdiction in ruling what the criteria was for deeming a ballot ineligible.
“This change to the election law is lengthy, confusing in spots…but unsealed envelopes are not curable defects,” Fusco said. “You can’t disenfranchise an illegal vote.”
The attorney argued that by not sealing the ballot within the smaller envelope, the integrity of the ballot cannot be trusted. Sullivan repeated the claim after the hearing concluded.
“I trust people and I don't think somebody took…envelopes and dropped in one other one,” Sullivan said. “But the point is that the integrity of that ballot was broken – so, we don't know.”
The Republican challenger has cast unspecified accusations of potential fraud in the race on multiple occasions over the past several weeks, saying on social media on Tuesday that his “faith in the political process diminishes with each passing day” the race is not concluded.
Neither Sullivan nor his attorney have presented any evidence of fraud in the race.
“The results will speak for themselves, but no one should be casting aspersions on the process and the people involved in the process who are helping to get to a conclusion,” Matthew Rey, a spokesperson for Pheffer Amato’s campaign told the Eagle.
In court on Thursday, Bolz also admonished the BOE for failing to notify the 94 absentee voters that their ballots had been thrown out, which is required under the law. The Queens County Democratic Party attorney argued that had the BOE sent the notices, the voters would have still had time to head to their poll site on Election Day to cast ballots in the race.
“[The BOE] did nothing,” Bolz said. “The majority of these votes came in well before Election Day…and there’s no reason why they couldn’t send [the notices].”
Kitzinger apologized on behalf of the board for failing “to meet their obligation.”
“The board made a mistake, it’s human and these are new procedures,” the attorney said.
Kitzinger, who also argued that the board didn’t have the authority to correct the mistake and needed guidance from the court, was quickly admonished by Risi.
“Those are the people I’m concerned about…the people who thought that they voted,” he said. “The board made a mistake but they don’t want to fix it.”
At the close of the proceeding, Risi told the parties that he had heard enough to make a ruling. Risi’s chambers declined to give a specific timeline on when his decision in the case will be issued, but noted that it will come “as soon as possible.”
Separate from the court case is a recount in the race, which the BOE is scheduled to begin on Friday. The recount is expected to wrap up sometime late next week.
Sullivan led Pheffer Amato by around 260 on Election Day. It was a somewhat surprising result in a race involving a two-time incumbent who had yet to face a close race since first being elected in 2016.
However, a significant portion of the district skewed Republican in the November general election. Large majorities of voters in neighborhoods like Breezy Point and Howard Beach cast ballots for Lee Zeldin, the Republican candidate who challenged Governor Kathy Hochul. Those neighborhoods were among the areas with the highest voter turnout in Assembly District 23.
Pheffer Amato appeared to take Sullivan’s challenge seriously in the months leading up to the election.
Her campaign ran an online video ad – an unusual practice in a local race – that noted Pheffer Amato’s opposition to “defund the police” and her commitment to “strengthen” the state’s bail laws. The two issues, and the general issue of the city’s crime rate, were at the center of a number of Republicans’ campaigns this election.
