Appellate court says invalidated votes in tight Queens Assembly race should be fixed and counted
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A panel of Appellate Division, Second Department justices ruled in favor of incumbent Democrat Stacey Pheffer Amato and rejected Republican challenger Thomas Sullivan’s argument that 94 previously invalidated ballots should be kept out of the race for Assembly District 23. Eagle file photo by Jacob Kaye
By Jacob Kaye
Count them – kind of.
A panel of Appellate Division, Second Department justices ruled late Tuesday afternoon that nearly 100 previously rejected absentee ballots cast in the race for Assembly District 23 will be sent back to the individual voters to be “cured.”
The ruling opens the door for 94 ballots to be re-entered into a race where only one vote separates candidates Thomas Sullivan and Stacey Pheffer Amato, who currently holds the lead.
The decision, issued after the parties argued the case on Monday, alters but doesn’t outright reject a decision issued by Queens Supreme Court Justice Joseph Risi earlier this month. Risi ordered the city’s Board of Elections to count the ballots as is, citing time concerns – it’s been well over a month since the votes have been cast.
At the heart of both the appellate justice’s and Risi’s ruling was the fact the Board of Elections failed to notify the 94 voters that their ballots had been rejected, as they are required to do by law.
“The Board failed to perform its duty under the Election Law,” the justices said in the decision. “Accordingly, the Supreme Court should have granted the petition to the extent of directing the Board to comply with [the law] by notifying each of the 94 voters whose absentee ballots were invalidated…of the invalidation of his or her absentee ballot, the reason for such invalidation, and the opportunity and procedure to cure the defect by filing a cure affirmation.”
As per the decision, the BOE will now be required to notify the 94 voters, and give them an opportunity to fix their ballots and finally make their voice heard in the closest race in recent New York City electoral history.
“We are grateful to the courts for once again agreeing that these are votes from valid voters,” Matthew Rey, a spokesperson with Pheffer Amato’s campaign said in a statement issued after the decision was made public.
“Two courts came to the same conclusion – New York will continue to be a champion for democracy,” he added. “No amount of extreme rhetoric will stop us from ensuring that every valid vote is counted, and we’re once again thankful to the courts for continuing to follow the law and ruling that these ballots can be cured and counted.”
Incumbent Democrat Stacey Pheffer Amato. Photo via NYS Assembly
Sullivan, a Republican who at one point led in the race by nearly 250 votes, told the Eagle that he and his attorney had yet to decide whether or not they were going to issue a motion appealing the ruling as they did with Risi’s ruling two weeks ago.
“It was quite a fascinating decision,” Sullivan told the Eagle on Wednesday. “Judges are allowed to interpret the law – I don't have to agree with it, or love it, but that's what it is.
Each of the 94 ballots were rejected by the BOE because they were not sealed in an “affirmation” envelope, or a smaller envelope that holds the ballot and is placed in a larger mail envelope.
In the case of the 94 votes, the ballots were either placed in the small envelope but left unsealed or placed in the larger envelope alongside the smaller one but not placed in it. Each of the 94 ballots were sealed in the larger envelope.
Pheffer Amato, who has represented the district since 2016, sued to get the ballots counted shortly after Election Day, when Sullivan led by 246 votes.
Separate from the suit, the BOE held a hand recount in the race due to the slim difference in votes between the candidates on Election Day. The resulting count, which was completed in early December, showed Pheffer Amato ahead by a single vote.
The incumbent’s attorneys – who are from Sweeney, Reich & Bolz, LLP, the powerful firm that works closely with the Queens County Democratic Party – argued that because the BOE did not send written notices to the 94 voters informing them of their invalidated vote, as they are required to do by law, the votes should be counted as is. In addition, they argued that recently passed statewide election law favors a liberal interpretation of absentee voting rules and that local boards should always lean toward counting a vote rather than rejecting it.
Sullivan’s attorney, Adam Fusco, argued that recently passed election law – known as the John. R. Lewis Voting Rights Act of New York – stipulates that rejected ballots aren’t curable and shouldn’t be counted.
Thomas Sullivan, the republican candidate in the race to represent Queens’ 23rd Assembly District. Photo via campaign
Risi ruled in favor of Pheffer Amato, and said that the BOE’s failure to notify voters left them with little choice but to count them as is.
BOE attorney Steven Kitzinger admitted to the mistake in front of Risi and apologized on behalf of the agency for failing to tell voters their ballot had been rejected.
“The board failed to meet its obligation to mail those notices,” he said earlier this month. “I apologize to the court, to the voters, to the public at large. The board made a mistake. It's human. It's new procedures.”
In addition to the suit concerning the 94 ballots, Pheffer Amato and her attorneys recently filed a separate suit arguing that around a dozen ballots that were rejected by the BOE during its hand recount in the race be put back into the tally.
The 14 ballots were rejected because the voter both filled in the bubble next to their preferred candidate and also wrote their name in the write-in section.
Of the 14 contested ballots, nearly all were cast in favor of Pheffer Amato.
Sullivan told the Eagle that he views the litigation over the race and the decisions to count ballots made by multiple judges as an effort to change the rules after they’d already been decided.
Making a baseball analogy, he said, “we’re in the ninth inning of the game with two outs and we’re now questioning the process.”
“You're changing the rules of the game,” he added.
Sullivan and Pheffer Amato will appear before Risi in Queens County Supreme Court, Civil Term on Thursday to argue the lawsuit concerning the 14 “overvote” ballots.
