Cabán narrows Queens DA race deficit, but judge won’t open dozens of affidavit ballots
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Borough President Melinda Katz (left) leads public defender Tiffany Cabán by 55 votes in the Democratic primary for Queens DA. Eagle photos by David Brand and Paul Frangipane.
By David Brand
Borough President Melinda Katz’s lead over Tiffany Cabán decreased from 60 to 55 votes in the Democratic primary for Queens district attorney Tuesday, after a state Supreme Court judge began the lengthy process of reviewing and ruling on dozens of ballots not factored into the result of a countywide recount.
Though Cabán picked up five votes, she suffered a major setback when Justice John Ingram said he would not open affidavit ballots where voters did not write their party affiliation on the envelope — a decision that could effectively end Cabán’s chance at a comeback. Her campaign said there were at least 68 such ballots submitted by registered Democrats. Ingram considered 28 of them Thursday.
After the hearing, Katz’s campaign advisor Matthew Rey called on Cabán to concede, saying “there is absolutely no math” that would enable Cabán to make up the deficit if the judge declined to open the affidavit ballots.
“The margin has barely changed, and the results are the same for a third time,” Rey said. “There is nothing left to count ... It is now time to allow Queens to move on.”
Attorneys huddle around Justice John Ingram as he considered a contested ballot Tuesday. Eagle photo by David Brand
Ingram wasn’t wearing robes, but the back room of the Board of Elections’ Queens outpost was a de facto courtroom nonetheless, complete with a plastic chair gallery and office tables for the judicial bench and attorneys’ desks.
The “courtroom” was occupied by lawyers from the campaigns of Katz and Cabán, and the BOE, which rarely has a contest drag on this late past voting day, which in this case was June 25.
The three legal teams engaged in intense debates over “squiggles,” “scribbles,” an intentionally drawn L, wavy lines and other “stray markings” that made the voters’ intent uncertain or otherwise prompted the BOE to disqualify the ballot.
The affidavit ballots that were missing party affiliation were determined not to be “substantially compliant” with existing state election law. A bill that passed the state legislature earlier this year would enable those ballots to be counted, but Gov. Andrew Cuomo has not yet signed it into law.
The attorneys also argued over another 42 invalidated ballots that the Cabán team challenged, 28 ballots that the Katz attorneys contested and one additional ballot that was not counted in the July 3 tally of absentee and affidavit ballots deemed valid by the BOE.
One lengthy exchange illustrated the complexity of the process and, ultimately, the subjectivity involved in determining a voter’s intent.
A ballot featured a line that crossed Cabán’s bubble, as well as the bubble for Jose Nieves, another candidate. The BOE initially invalidated the ballot as an “overvote” because a substantial portion of two bubbles were filled in. Katz’s attorney Frank Bolz cited election statues to argue for the ballot’s banishment.
“Only a quarter, less than a quarter” of Cabán’s bubble was filled in, Bolz said. “Everything else is in Nieves … in essence this is an overvote.”
Goldfeder disagreed and said the voter clearly intended to choose Cabán. The rest of the line that stretched into Nieves’ bubble was a stray marking, he said.
Ingram sided with Goldfeder on this occasion.
“Obviously the intent of the voter was to vote for Cabán because the line started in the middle” of the bubble next to her named,” Ingram said, even though, he added, “85 percent of the line” was in Nieves’ bubble.
Early in the day, Cabán picked up another vote to narrow the seemingly insurmountable deficit.
“We’re chipping away,” Goldfeder quipped.
A separate contested ballot featured a vote for Katz — and a mysterious yellow stain.
Ingram said it looked like mustard — a stray condiment perhaps, but not an identifying mark. He ruled that the vote counted for Katz.
