By Emma Whitford
State Supreme Court Justice John Ingram will consider opening 28 contested ballots cast in the June 25 Democratic Primary for Queens District Attorney, he ruled in Queens Supreme Court Wednesday.
These 28 ballots, on their own, would not be enough for insurgent candidate Tiffany Cabán to pull ahead of Borough President, Melinda Katz, the declared victor in the closely-watched race, but Cabán’s attorneys say there are dozens of additional ballots that should also count toward the final result. Katz leads Cabán by 60 votes after the Board of Elections certified the result of a full manual recount.
Lawyers for Cabán identified the 28 ballots in question on July 3 and said Wednesday they represent a fraction of at least 125 ballots they plan to present in court, in the hopes of changing a certified election result for the first time in recent New York City history.
“Both the interests of democracy and legal precedent demand that these invalidated affidavit ballots and Cabán votes be counted,” Cabán’s lawyer Jerry Goldfeder said.
Ingram did not rule out the possibility of reviewing additional ballots at a later date. “I will rule on those,” he said in court.
Cabán, a public defender, initially declared victory on the night of the June 25 primary, leading unofficially by about 1,100 votes. But Katz, the establishment-backed candidate, pulled ahead by 20 votes when absentee and affidavit ballots were counted a few days later. (Affidavit ballots are filled out when a voter’s name does not appear on the rolls at a polling site.) The tiny margin necessitated a recount of all 91,000-odd ballots, a two-week process that concluded last week.
Katz declared victory upon the completion of the recount — she received 34,920 votes to Cabán’s 34,860 — even as Cabán refused to concede. She celebrated with supporters and volunteers at the Forest Hills bar Banter on Monday night.
Wednesday’s scheduling hearing lasted for more than two hours, during which Goldfeder provided some clarity on the invalidated ballots he hopes to resuscitate.
Goldfeder said his team will argue that 68 affidavit ballots — including the 28 that Ingram has agreed to consider — are substantially compliant. On all but one, the voter failed to check the box next to ‘Democrat.’ On the other, the voter didn’t fill in their address completely.
At least 22 other affidavit ballots were submitted by voters who say poll workers sent them to the wrong polling site. These voters are prepared to testify in court, Goldfeder said.
There are also two affidavit ballots from voters who allegedly voted at the correct polling site; 12 from voters who Goldfeder said are registered, despite the BOE’s position to the contrary; and 21 Cabán ballots disqualified during the recount, which Goldfeder said are substantially compliant and should count.
Goldfeder also told Ingram that he plans to argue for the disqualification of 21 ballots cast for Katz — a strategic point that wasn’t lost on the Katz campaign. For the past month, both campaigns have been adamant in their messaging that all valid votes should be counted.
"After shouting from the rooftops for months that every vote should count, they are now moving to disqualify  votes cast for Melinda Katz,” Katz spokesperson Matthew Rey said in a statement. "Their efforts are akin to throwing spaghetti at a wall and hoping something sticks.”
Throughout Wednesday’s hearing, attorneys for both Katz and the BOE called on the judge to dismiss Cabán’s case. Both parties said that, per BOE protocol and case law, Cabán’s lawyers should have entered all of their objections to invalid affidavit ballots in the immediate aftermath of the election — when the Board made its preliminary assessment of which ones should count.
“When you ask for nothing, you get nothing," quipped Gerard Sweeney, one of Katz’s lawyers, and a partner in the county party-allied firm Sweeney, Bolz and Reich.
“They can’t get a second bite at the apple,” added City Law Department attorney Stephen Kitzinger, for the Board. “The time to raise additional objections has expired.”
Cabán’s attorney Reneé Paradis told Ingram that the 30-odd affidavits she recommended for resuscitation on July 5 were just a small subset because her team had not yet had time to review all 2,300 disqualified affidavits. “I believe that I was clear that these were … not the extent of our objections,” she said.
Ingram told the court that he plans to consider this question in the coming week, once he has received submissions from all of the attorneys. “I trust in the papers there's going to be arguments regarding this very issue of the timeliness,” he said.
Towards the end of the hearing, Goldfeder accused Kitzinger of siding with Katz’s legal team. “We have the Board of Elections — supposed to be a neutral regulator — making vigorous arguments, substantively, and I think it’s not really appropriate,” he said.
“I am here for the Board of Elections, and am defending the determinations that they made, whether they are in favor of the Katz campaign or the Cabán campaign,” Kitzinger countered.
BOE Commissioners are appointed by county political parties, a feature of New York state law that has generated criticism during the weeks-long ballot review and recount.
The gallery was crowded Wednesday with Katz’s supporters, including Queens County Democratic Leader, U.S. Rep. Gregory Meeks, who sat in the front row. Meeks praised the lawyers for both Katz and the BOE outside the courthouse after the hearing.
“I felt very good about the case that was presented on behalf of the Katz campaign, as well as listening to the impartial work of the attorneys for the Board of Elections,” Meeks said.
“And I was impressed with the judge, who seems to want to move this case along,” Meeks added. “We do not need to have people try to drag the case on and on and on.”
Ingram will visit the Board of Elections office in Forest Hills to review 28 unopened ballots on Tuesday, August 6 at 10:30 a.m.