Queens judge will decide fate of 114 affidavit ballots in tight DA primary

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

Election lawyers from the campaigns of Melinda Katz and Tiffany Cabán will appear in Queens Supreme Court, Civil Term Tuesday morning to determine whether 114 affidavit ballots cast in the Democratic primary for Queens district attorney will count toward the final tally. 

The fate of those affidavit ballots, initially deemed invalid by the Board of Elections, could prove consequential in the race, which Katz leads by just 16 votes ahead of a full manual recount.

The BOE did not count the 114 affidavit ballots, also known as provisional ballots, because the voters did not complete the space for “party enrollment” on the form that accompanies their ballot. Voters submit affidavit ballots at polling places when their names do not appear on voter rolls. Overall, would-be voters cast 2,781 affidavit ballots, of which 487 were admitted by the BOE and counted last week.

“More than 100 affidavit ballots from registered and eligible Democrats were wrongly invalidated by the BOE — and we will be in court Tuesday morning to make sure these voters are not disenfranchised,” said Cabán’s campaign spokesperson Monica Klein in a statement Monday.

Katz’s campaign said Friday that they are determined to see every vote counted.

“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, a partner at Red Horse Strategies and spokesperson for Katz’s Campaign. “Our values were consistent when we were behind, and now that we have the lead, remain the same.”

Chief Administrative Justice Jeremy Weinstein is scheduled to hear Tuesday’s case, in what could be his last major decision before he retires later this summer. His law secretary said the case has not been officially assigned to a judge, however.

Election attorney Sarah Steiner said there is a good chance that the 114 affidavit ballots will be validated and factor into the final vote total. 

“I expect the court will allow those ballots to be counted,” Steiner said. “For one thing, there is case law, and there’s a bill that codified that case law that passed the [state] Senate and Assembly.”

The bill Steiner referred to would change election law to count affidavit ballots that “substantially comply” with requirements, even if they do not completely meet those requirements — if the voter did not spell out their party enrollment on the form but are nevertheless registered in that party, for example. Assembly Speaker Carl Heastie has not yet sent the bill to Gov. Andrew Cuomo to sign. 

“At this point, anyone who is a registered Democrat and just made a clerical error probably should have their vote counted,” Steiner said.

She said she expects the court to make a decision within a day or two because, under the law, “election matters take precedence over all matters.” 

If those ballots do get opened and counted in the final tally, one campaign may be disappointed, Steiner said.

“Opening ballots is always a case of ‘Be careful what you wish for,’” she said. “We can’t say we can make a determination about what’s inside until we open them.”

After the court ruling, the election will head to a full manual recount of the roughly 91,000 votes cast countywide at a BOE facility in Middle Village. 

The recount will invariably turn up new votes for Katz and Cabán as well as their competitors in the race — former Judge Gregory Lasak, attorney Betty Lugo, former Civilian Complaint Review Board Director Mina Malik, former state Attorney General’s Office prosecutor Jose Nieves and Councilmember Rory Lancman, who dropped out of the race but whose name appeared on the ballot.

The machine scanners do not pick up ballots when a person does not adequately fill in the circle next to a candidate’s name. But in the hand recount, voters must only show intent to select a specific candidate — either by circling their choice, marking an X in the bubble next to the candidate’s name or by some other means. 

“So people who aren’t used to filling in little oval circles — people who haven’t taken the SATs for instance, or who don’t read directions well, still get their votes counted in a hand recount,” Steiner tweeted. “At the end, the vote is almost never the same as the first count. That’s fine.”

Steiner’s statement provides perspective on a voting norm that that well educated people and experienced voters may take for granted.

“It’s one of those things that shows you how systemic advantages carry forward in life,” Steiner told the Eagle. “I’ve filled in boxes, but someone from another country, or someone who didn’t go to college they might not know you have to.”