Just one vote separates candidates in Assembly District 23 race, with incumbent in lead

Following a hand recount in the race for Assembly District 23, incumbent Assemblymember Stacey Pheffer Amato leads her Republican challenger, Thomas Sullivan, by one vote. Around 95 absentee ballots could potentially enter the count in the coming days. AP file photo by Mary Altaffer

By Jacob Kaye

If there was ever an election to prove the power of one single vote, it is the race to represent Queens’ 23rd Assembly District.

Just one vote separates incumbent Assemblymember Stacey Pheffer Amato and her Republican challenger Thomas Sullivan following a hand recount in the tight race, which the city’s Board of Elections completed last week.

Pheffer Amato, who was trailing Sullivan by around 250 votes after the polls closed in the race a month ago, is currently in the lead.

Of the little over 32,000 votes cast in the race, 16,137 have gone to Pheffer Amato, and 16,136 have gone to Sullivan.

But the incumbent’s victory isn’t shored up just yet.

There are still 94 absentee ballots that have yet to be counted – should they withstand a legal challenge from Sullivan. There are also several affidavit ballots that the BOE did not consider during its automatic recount of the race that could factor into the final count.

In total, there are nearly 100 votes in the race left to count, most of which are expected to go toward Pheffer Amato’s total.

The race to represent the 23rd District, which covers parts of Ozone Park, Howard Beach, the entire western half of the Rockaway peninsula and a portion of peninsula’s eastern half, is the closest race in recent New York City electoral history. In 2019, a primary election in the race for Queens district attorney between now-DA Melinda Katz and now-City Councilmember Tiffany Cabán entered into an automatic recount after 20 votes separated the candidates on Election Day – Katz won the recount by around 50 votes.

The vote differential in the AD 23 race has only shrunk since Nov. 8, when voters went to the polls to cast ballots in the statewide general election.

Around 94 percent of scanners in the district were counted on Election Day, when Sullivan led by 246 votes. As the remaining ballots were counted, including a number of absentee ballots that had yet to make their way to the BOE, Sullivan’s lead slimmed to just three votes.

The tight margin prompted an automatic hand recount from the BOE, which began on Dec. 2 and continued through the following week.

With the recount completed, Pheffer Amato leads by one vote, marking the first time the two-time incumbent has led in the race.

“I'm disappointed that we went down one,” Sullivan told the Eagle on Friday. “My path to victory is that those affidavits go my way and those 94 [absentee] ballots are kept out.”

The ballots Sullivan referenced are currently under litigation.

Shortly after the election, Pheffer Amato and her attorneys – led by powerful Queens County Democratic Party attorney Frank Bolz – sued to have 94 absentee ballots that had been invalidated by the BOE counted toward the race’s total.

The ballots, most of which were sent in prior to Election Day, were not properly sealed in an “affirmation envelope,” or a small envelope that holds the ballot and is held by a larger mail envelope. In the case of each of the 94 ballots, the larger envelope was sealed.

Citing their interpretation of recently passed statewide election law, the BOE rejected the ballots for not being sealed twice.

However, Pheffer Amato and her attorneys argued that the new law – known as the John. R. Lewis Voting Rights Act of New York – was written to allow for local boards of election to liberally interpret absentee ballot rules in an effort to boost voting numbers. They also argued that because the BOE failed to send notices to the 94 voters that their ballots were invalidated – which they are required by law to do – the votes should be counted as is, rather than “cured,” or fixed by the individual voter.

Queens Supreme Court Justice Joseph Risi sided with Pheffer Amato in his decision issued on Tuesday, Dec. 6, and ordered the BOE to count the 94 ballots and to reconsider four additional affidavit ballots that it had previously rejected.

“The Court must strike a balance between protecting the integrity of the electoral process, safeguarding the right to vote, and ensuring that the Board complies with its own obligations in furtherance of these goals,” Risi said in his decision.

“[R]egardless of whether either of these aforementioned defects were curable, in nearly all of these cases, the Board had ample time to provide the voters with an opportunity to cure, inform the voters of other options for voting, or provide the voter with a new ballot,” he added. “When questioned by the court, regarding the sealing of the ballot affirmation envelope, which was contained in a sealed outer envelope, counsel for the Board agreed that it did not affect the integrity of the vote.”

Sullivan and his attorney, Adam Fusco, filed an appeal in the case shortly after Risi issued his decision.

The parties will appear in the Appellate Division, Second Department, to make their arguments on Monday, Dec. 12.

Speaking with the Eagle on Friday, Sullivan said that he believes it’s unlikely that he’ll be able to pull out a victory at this point.

Even if his attorney successfully argues that the 94 absentee ballots and the additional affidavit ballots should not count toward the race, it won’t change the fact that the recount – which he said he “respects” – has been completed and that he lost it by one vote.

“It's pretty amazing – 32,000 plus people and you're within one vote,” Sullivan said. “But a win is a win and a loss is a loss. At the end of the game, if you won by one vote or 10,000 votes, it's a win.”

Politically, however, Sullivan believes that there was a victory won in Assembly District 23, an area that has been represented by a Democratic assemblymember for over 50 years.

Like most Republicans this past election cycle, Sullivan focused his campaign on the issues of crime and reforming the recent bail reforms – issues he says voters aligned with.

“I'm not big into things like ‘red waves,’ but the truth is that the Republicans won back a lot of seats,” he said, adding that Pheffer Amato may be swayed to take more moderate or conservative positions based on the results of the election.

“Sometimes there's good that comes out of a loss – not necessarily for me,” he added.

Pheffer Amato’s campaign declined to comment for this story.