By Emma Whitford
Lawyers for insurgent Queens District Attorney hopeful Tiffany Cabán go to court tomorrow morning hoping to achieve a result that has not occurred in recent New York City history (and maybe ever): changing the outcome of a certified primary election.
The goal, the attorneys say, is to resuscitate more than 100 invalidated ballots and overcome Cabán’s 60-vote deficit behind establishment candidate, Borough President Melinda Katz.
“More than a hundred ballots cast by eligible and registered Democratic voters continue to hang in the balance, and will determine the final outcome of this election,” said attorney Jerry Goldfeder in a statement Monday.
Board of Elections General Counsel Steven Richman emphasized the long odds that Cabán faces in an interview with the Eagle. Since he started at the Board of Elections in 1999, “In no case has the outcome changed. Just the margin has changed.”
“The answer is no, it hasn’t happened,” echoed Board of Elections Commissioner Michael Ryan Monday, after the Board certified Borough President Melinda Katz’s lead — 34,920 votes to Cabán’s 34,860. “However, we must respect the court process.”
The task that lies ahead for the Cabán campaign, says Ohio State University Law Professor and elections expert Steven Huefner, is to identify as many allegedly mishandled ballots as possible. The number that the campaign has hinted at might not cut it, he said.
“Let's just take the 100 figure,” Huefner offered. “They'd have to have 80 percent of those break their way just to make up the difference. And that's to get you to a tie.”
“It’s still feasible, and I think that's probably why she wants to play it out,” Huefner added. “But that's a long way of saying it's a really steep hill for her to climb.”
A Cabán victory in court would be just the latest episode in a superlative summer in Queens.
For starters, Cabán and Katz’s razor-thin margin prompted the borough’s first manual recount since ballot scanners were introduced in 2010. (There was a manual recount in 1955, in a race with numerous parallels to today.) The 32-year-old public defender initially declared victory on the night of the June 25 primary, leading unofficially by fewer than 1,100 votes. But Katz pulled ahead by 20 votes when absentee and affidavit ballots were counted a few days later, necessitating the recount. (Affidavit ballots are filled out when a voter’s name does not appear on the rolls at a polling site.)
Recent manual recounts in other boroughs have been comparatively small. For example, roughly 22,000 ballots were cast in the 2012 special election for Brooklyn’s 27th State Senate District, where Republican David Storobin ultimately edged out Democrat Lew Fidler by just 14 votes.
Democratic State Assemblymember Victor Pichardo beat his 2014 primary challenger, Hector Ramirez, by just two votes in 2014. In that election, though, fewer than 4,000 ballots were cast. Both elections also ended up in court.
By comparison, roughly 91,000 people voted in the June 25th District Attorney primary in Queens.
“While we have engaged in a process like this in past elections, this is the first time that the board has engaged in such a process with this scope and scale,” Ryan said Monday, praising Board staff.
Elections experts told the Eagle that Cabán’s legal strategy is typical, if typically futile.
“If the race is close enough... this is what you do,” said New York City election lawyer Sarah Steiner.
Just last week, Steiner added, she represented a candidate in another June 25 Democratic primary: for District Leader in West Harlem. Her client, Corey Ortega, trailed four votes behind Luis Johnson on election night, then pulled ahead by two votes when absentee ballots were counted. A total of just 1,268 votes were cast. Johnson fought unsuccessfully in court for additional affidavits to be opened.
Cabán spokesperson Daniel Lumer declined to specify exactly how many ballots the campaign will challenge, citing a need to “protect legal strategy.” But he said the ballots fall into five categories.
First, ballots that were invalidated during the manual recount because the Board of Elections ruled a voter’s intent was not clear. Also, affidavit ballots from voters who the campaign believes are registered, even though the Board of Elections says otherwise.
Additionally, affidavit ballots from registered Democrats that were filled out incorrectly (say, the voter failed to check the box next to “Democrat”); ballots from poll workers who allegedly did not receive the correct paperwork to cast their own votes; and, finally, affidavit ballots from voters who allegedly received bad information on election day and therefore submitted their ballots at the wrong polling site.
Of 2,816 affidavits cast in the primary, only 476 were initially counted by the Board of Elections.
Steiner predicts that the largest pool of contested ballots will be affidavits discounted because of errors made in filling out the affidavit envelope. According to Huefner, arguments over these ballots are quite typical.
“The question is always whether the voters have provided enough information,” he said. “Or, in legal terms, whether ‘substantial compliance’ is sufficient. That’s a test that’s ultimately really for the court to decide.”
The Katz campaign declined to confirm to the Eagle whether they also plan to litigate for the resuscitation of individual ballots. This is not surprising, Steiner said: “When you’re ahead, you don’t want to rock the boat.”
What Lies Ahead
Setting aside outcomes, experts say that Judge John Ingram in Queens Supreme Court, Civil Part, has plenty of incentive to wrap up proceedings well before the general election for District Attorney in November.
“Generally the court tries to resolve [these cases] as quickly as possible,” said David O’Brien, staff attorney for FairVote, a national nonpartisan organization that advocates for voting reforms. “They know that they're in sensitive territory when they're dealing with election disputes.”
Still, drawn-out court battles are not unheard of on the national stage. There was the 2008 U.S. Senate race between Democrat Al Franken and Republican Norm Coleman in Minnesota, which lasted for more than seven months and was appealed up to the state Supreme Court before Coleman conceded.
In the event of a Katz-Cabán tie, New York law dictates that the county party must select a winner. In this scenario, Katz, their chosen candidate, would undoubtedly win.
Storobin had a few words of commiseration for Cabán.
“I don't think she is looking for my support, politically speaking,” the Republican said in a phone call with the Eagle. “But I do have a bit of a soft spot for someone who’s going up against the establishment.”
“The first couple weeks it's a pretty horrible process, because you cannot do anything,” he added. “Not like in a regular campaign where you can go out and shake some hands. Here, you are staring at the wall waiting for results to happen. It's nerve wracking.”
It is not uncommon for candidates to drop court challenges, O’Brien said. Litigation isn’t just time-consuming and stressful. It’s also quite expensive. While Katz has received substantial free legal representation from county party attorneys, Cabán has already spent at least $85,000 on legal fees. “The idea of sort of gracefully accepting defeat and trying again the next time is definitely a thing,” O’Brien said. Especially if there’s pressure from the party establishment to do so.
But the grassroots energy around Cabán could change the calculus and increase incentives to keep fighting.
“I suspect,” O’Brien added, “the kind of ‘for the good of the party’ appeals are less persuasive to those who are already skeptical or critical of the party.”