The Independent View: NY Ballot Recount Procedures

New York Law provides for Automatic Recounts in the Event that, upon Recanvassing, there is a Discrepancy between the Number of Voters who Voted in a Jurisdiction and the Number of Votes Recorded on the Tabulated Results. Courts may also Order Recounts. In Elections for Village Offices, Candidates may Initiate Recounts. Local Board of Elections can use Local Procedures. There are No Provisions in State Law enabling Voters to Initiate Recounts.

In their Government and Election Law Column, Jerry H. Goldfeder, Special Counsel at Stroock & Stroock & Lavan, teaches Election Law at Fordham Law School, and is the Author of Goldfeder’s Modern Election Law (NY Legal Pub. Corp., 5th Ed., 2018). Myrna Pérez is the Director of the Voting Rights and Elections Project at the Brennan Center for Justice at NYU School of Law, and regularly Litigates Voting Rights cases. Address several of the Rulings by New York Courts concerning Limitations on the Public’s Involvement in Elections.

Election Winner

The New York Court of Appeals very rarely Grants leave to Appeal in an Election Case. This year was No Exception, but it did Hear an Appeal from an Appellate Division, Third Department Case in which there were Two Dissents. CPLR §5601. In Kosmider v. Whitney, N.Y.3d, 2019 WL 2453619 (2019), the Court, in a 4-3 Decision, made it even more Difficult for Voters in New York to Confirm Results in Close Elections.

Unlike many States that Require a Manual Recount when the Margin in a Race is Close, New York State has No such Automatic Fail-Safe Provision (Johnson v. Martins, 15 N.Y.3d 584 (2010)), though a Local Board of Elections may Impose one.

In New York City, for example, if the Margin between the Two Leading Candidates is Under One-Half of 1%, a Hand-Recount of Every Ballot will be undertaken. This Policy led to the Manual Counting of some 90,000 Votes in the Queens District Attorney Democratic Primary Election Race last Month and a Reversal of the Winner.

But, according to the Court in Kosmider, in the Absence of a Court Order, a Candidate or Interested Citizen who Wishes to View the Actual Ballots or Machine-Scanned Copies of such Ballots to Confirm whether the Machine Results of a Close Race were Accurate cannot even Employ New York’s Freedom of Information (FOI) Law to View either until Two Years after the Election.

This is especially Problematic because Voting Machines Count Votes, that should be Voided because of Intentionally Placed Extraneous Marks on the ballot, and Fail to Count Votes that were Irregular but Valid, where the Voter Circled or Checked a Candidate’s Name rather than Completely Filling in the Oval Next to the Candidate’s Name. Thus, Candidates and Voters may Not Know for Two years if Candidates who have been Declared the Winner in Close Races actually Received More Votes than their Competitors.

This Lack of Access is echoed by the Fact that Various Boards of Elections, which determine whether a Candidate Remains on the Ballot or Gets Thrown Off, do Not Require a Public Hearing. In Reese v. Erie County Board of Elections, 172 A.D.3d 1942 (4th Dep’t 2019), the Appellate Division Rejected a Candidate’s Argument that the State’s Open Meetings Law Allowed him to Record the Local Board of Elections’ Meeting, adopting the Second Department’s 2017 Holding that a Board’s Meetings on Ballot Access Challenges “did not involve deliberation on a matter of public policy.”

Krauss v. Suffolk County Bd. of Elections, 153 A.D.3d 1211 (2d Dep’t 2017). For the Courts to Pronounce that a Board of Elections’ Ballot Access Decisions does Not involve “Public Policy” is certainly a Pinched Reading of the Open Meetings Law.

The Lack of Transparency relating to Ballots Cast and Board of Elections Deliberations needs to be Addressed by Albany. A Comprehensive Overhaul of New York’s Election Laws is Warranted. And while Albany is at it, the Legislature should Reform the Freedom of Information and Open Meetings Laws as they Pertain to the Electoral Process.

CLICK HERE for New York Recount Laws.