16 votes separate Katz and Cabán as Queens DA primary heads to recount

Melinda Katz (left) and Tiffany Cabán (right) at a June forum hosted by the  Eagle  and NAACP at St. John’s UniversityAP Photo/Mary Altaffer, File

Melinda Katz (left) and Tiffany Cabán (right) at a June forum hosted by the Eagle and NAACP at St. John’s UniversityAP Photo/Mary Altaffer, File

By David Brand

Jeffrey Kozlowski of Maspeth usually heads to the polls on election day, but he sat out the June 25 Democratic primary for Queens District Attorney.

He regrets that decision.

“I did not realize how close the voting would be,” Kozlowski told the Eagle

Borough President Melinda Katz leads Tiffany Cabán by just 16 votes in a county with more than 815,000 registered Democrats. Kozlowski’s vote would have increased his preferred candidate’s lead by more than 6 percent.    

“I should have voted for Katz,” he said.

Hundreds of thousands of derelict Democrats avoided the polls on Election Day. Just a handful of them could have swung the race by marking their ballot for Katz or Cabán.

Instead, those non-voters will lack any direct impact on who earns the Democratic nomination — and likely wins the November general election — as the roughly 91,000 ballots cast in the primary undergo a full manual recount.

The recount is set to begin after a Queens Supreme Court judge settles a dispute over 114 disqualified affidavit ballots on Tuesday. The recount could take up to three weeks to complete, election experts say.

Stunning results, shocking shifts

Election night results had Cabán up by 1,090 votes. The early returns transformed her campaign event at a Woodside nightclub into a raucous celebration, and Cabán, a career public defender who promised to radically transform how people are charged and punished for alleged crimes in Queens, declared victory. 

A re-canvassing of the voting machines only increased Cabán’s lead to 1,199 votes, which seemed insurmountable to pundits and veteran election experts, even though there remained roughly 3,500 absentee ballots and 487 affidavit ballots deemed valid by the Board of Elections.

Heading into the July 3 count of those outstanding ballots, Cabán led Katz 34,104 votes to 32,905 votes. 

But the count, conducted before monitors and attorneys from both campaigns, revealed a stunning reversal: Katz — a career politician who has also pledged to enact significant prosecutorial reforms — overcame the deficit and led Cabán by 20 votes. A vote differential of less than one-half of 1 percent triggers a recount, according to the BOE.

On July 5, the two campaigns reconvened at the BOE’s Forest Hills office to dispute another 2,300 affidavit ballots that were initially deemed invalid by the BOE. Affidavit ballots, also known as provisional ballots, are cast by people whose names do not appear on voter rolls for a variety of reasons: they may have never actually registered to vote, they may have been locked out by the intricacies of New York State’s arcane election laws or, as has already been the case in a few instances, the BOE may have made a mistake. 

Cabán’s lawyer Renee Paradis successfully advocated to have six of those affidavit ballots validated. Five of the six votes went to Cabán and one went to Katz — a four-vote swing that reduced the differential to just 16.

Of the roughly 2,300 affidavits ballots tossed by the Board of Elections, 114 were deemed invalid because voters left the “party enrollment” space blank on the form accompanying their affidavit ballot. Cabán’s campaign attorneys will challenge that ruling in Queens Supreme Court Tuesday.

Other uncounted votes will add to the tally, a development first reported by The Wall Street Journal.

“In addition, hundreds of votes were not caught by the scanners and will be reviewed during the manual recount,” said Cabán’s campaign spokesperson Monica Klein in a statement. “Our campaign is working diligently to ensure that the Queens party machine does not disenfranchise or suppress votes that should be considered legitimate.”

Katz’s campaign called speculation about election fraud the “height of irresponsibility.”

“Our goal at the beginning of this week was to count every valid vote, and our goal remains to count every valid vote,” said Matthew Rey, partner at Red Horse Strategies and a Katz campaign spokesperson. “Our values were consistent when we were behind, and now that we have the lead, remain the same.”

The full recount will begin after the court arrives at a verdict about the affidavit ballots. The hearing is scheduled for Tuesday.

Claims of victory — and conspiracy 

Eight days after Cabán declared victory at her Election Night party, it was Katz’s turn to claim the Democratic nomination. She announced that she had won immediately after the July 3 count.

“I am proud to have been chosen as the Democratic nominee for Queens District Attorney,” Katz said. We know that these numbers can and will be subject to recount, and there may be legal challenges, but what matters most is the will of Queens voters.”

“I want to thank the people of Queens for delivering this important victory; I look forward to having tonight’s results affirmed in the coming days; and I am honored to be ready to serve as Queens’ next District Attorney,” she added.

Cabán’s campaign team said the election is far from over, and also looked ahead to the full recount. 

“Queens voters are inspired by Tiffany Cabán's campaign and her vision for real criminal justice reform,” said Klein, Cabán’s spokesperson. “If every valid paper ballot vote is counted, we are confident we will prevail."

Cabán’s campaign had filed a preemptive lawsuit in Queens Supreme Court on July 2 in case of any irregularities in the vote count process.

Attorney Frank Bolz, a powerful leader of the Queens County Democratic Party, managed the count for Katz, overseeing a team of monitors who were seated at each of the vote count tables in the Board of Elections office. 

The Queens County Democrats appointed the Queens’ Democratic Board of Elections commissioner — one of the city’s ten BOE commissioners (one Democrat and one Republicans from each of the five counties) — prompting some Cabán supporters, including elected officials, to question the impartiality of the individuals who determine the validity of ballots.

“[H]ere’s something we ALL learn when we are two years old — people of INTEGRITY don’t need to steal,” tweeted State Sen. Alessandra Biaggi.

Gov. Andrew Cuomo’ Secretary Melissa DeRosa, meanwhile, blasted that anti-establishment conspiracy theorizing as “Trumpian.” Cuomo has endorsed Katz for DA. 

Election attorney Ali Najmi told the Eagle Wednesday that the result of the count was based on smart strategy by Katz, and not party maneuvering.

“It looks like Melinda Katz's campaign had an absentee ballot initiative and they were smart for it,” said Najmi, who worked as an election lawyer for Mina Malik, a former Civilian Complaint Review Board director who ran for Queens DA. He has represented various other candidates for elected office in Queens.

“The board has excellent staff and it’s a transparent process that allows both campaigns and their lawyers to be present and observe. There’s a lot of integrity with the Board process,” he added.

To further complicate matters, Twitter trolls — and possibly bots — have also attempted to manipulate emotions around the contentious election. Cabán campaign staffer Rapi Castillo cautioned denounced the attempts to spread “fake news” in a tweet, which included a screenshot of a “Maga-bot claiming to be a nurse.”

In November, the Democratic nominee will face — who exactly?

When the dust settles, the winner of the recount will face Republican nominee Daniel Kogan in the November general election — unless the Queens GOP decides to run another candidate. 

Kogan told the Eagle last week that he was willing to step aside to open the nomination to former Judge Gregory Lasak, who finished third in the Democratic primary.

Lasak has not responded to request for comment but has not ruled out the possibility of running on the GOP line.

“I’m just absorbing everything,” Lasak said at his election night party. “I haven’t thought about it.” 

Another potential candidate has come forward, telling the Eagle that he would seek the nomination if both Kogan and Lasak turn it down.

Regardless of who wins the Democratic nomination, at least one Queens resident who actually showed up to the polls on Election Day remains unconvinced by either candidate.

Daniel, an actor from Astoria, said he voted for Malik, the former CCRB director. He didn’t want his last name published while discussing politics.

 “If I was left with only two candidates as a choice I don’t know if I would go with Katz over Cabán,” he said.

Cabán, he said, is “all progressive rhetoric,” while Katz has never demonstrated a commitment to justice reform or an interest in becoming DA before it became politically expedient.

“Twitter can’t perform day-to-day tasks that are not political but managerial that Cabán will have a tremendous learning curve to get over,” Daniel said. “Katz will have far less of a learning curve, but neither should lead a department of hundreds of employees in legal areas they are not skilled enough in.”

“Let’s put it this way, the two leaders to me are not leaders,” he added.