John Fund: Change how we conduct elections — undecided NY congressional race shows what’s wrong

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A lot has happened since Election Day. A president has been impeached, and a new Congress and president have been sworn in. But the U.S. House of Representatives is still short a member due to a ballot count that sometimes resembles a farce.

Who was elected in New York’s 22nd Congressional District, covering Utica and Binghamton? We still don’t know. The race remains undecided due to a combination of flawed rule changes, overworked or incompetent election officials, and a dithering judge. 

The race has national implications because it lays bare just how the wholesale rewriting of election laws in 2020 was able to create chaos that undermines public confidence in voting.

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A full recount of disputed ballots in the eight counties in the congressional district has been completed. It shows former Republican Rep. Claudia Tenney defeating former Democratic Rep. Anthony Brindisi by just over 30 votes out of more than 311,000 cast.

But the recount is only one step in a grueling process that will probably keep the House seat vacant for weeks longer. On Monday, State Supreme Court Justice Scott DelConte will begin going through 1,028 disputed ballots and rule on which should be counted.

Two weeks ago it was discovered that Oneida County’s elections board had failed to process 2,418 voter registration forms from voters who signed up on time through the Department of Motor Vehicles.

When many of those voters showed up at the polls they were told they weren’t registered. Hundreds left without voting, while some 300 filed provisional ballots that weren’t counted.

Now Justice DelConte says he will decide which of the new ballots will be counted. Whatever his ruling, it will be appealed. Ultimately, the closely divided House of Representatives controlled by Democrats will decide if it will seat the winner or conduct its own second-guessing investigation.   

How did this election count become such a meltdown?  It started last year when New York Gov. Andrew Cuomo issued executive orders changing the state’s election law in late August, with just over two months to go before Election Day. 

Without consulting the state Legislature, Cuomo added an unverified online portal for anyone to request an absentee ballot. It has since been taken down due to concerns over its complete lack of security.

The watchdog group Judicial Watch says there is evidence that third-party groups may have used the portal to order ballots for individuals.

Cuomo’s order also added a requirement that defective absentee ballots could be "cured" by contacting the voters involved. This created huge burdens for local boards of elections and controversy over how each ballot was "cured" or not.

The governor’s office promised additional resources to the boards so they could cope with all of the changes. But no money was ever forthcoming.

So for the first time in New York’s history, the county boards of elections were forced to contend with essentially three elections: early voting during a presidential year; running Election Day with a record turnout; and handling a record number of absentee ballots due to the coronavirus pandemic, involving figuring out how to "cure" any flawed ballots.

Many of the boards — especially Oneida County’s — didn’t do their jobs properly.

Oneida County, the district’s largest and centered around the city of Utica, saw election commissioners use sticky notes to keep track of the reasons why Tenney and Brindisi lawyers disputed dozens of ballots. But many of those sticky notes fell off, so for some it’s impossible to know whether a challenged ballot has been counted or not.

In addition, Chenango County officials discovered 55 uncounted ballots that had been "mislaid" at the board of elections office. Shortly thereafter, it found an additional 12 ballots stuffed in a drawer.

A Madison County official admitted in court that the board of elections timestamped 132 ballots for Nov. 4 — the day after Election Day. Officials acknowledged they didn't know if the ballots were mailed or dropped off at the polls. The outside envelopes accompanying the ballots have been thrown away. No chain of custody can be established.

Even though the law is clear that without a chain of custody the ballots are invalid, Justice DelConte called in Madison County election workers who testified they believed the ballots were valid — providing his own "cure" for disputed ballots even though none is allowed in state law. 

Backdating documents is clearly a fraudulent act in business and private life. But election officials were essentially being nudged by the court to backdate ballots so they can be counted.

It’s important that everyone’s valid vote be counted. But invalid votes as defined by the law shouldn’t be counted. 

DelConte has unwittingly fallen into a rabbit hole. He is attempting to change the facts surrounding disputed ballots so he can avoid a harsh application of the law that would toss many of them out. But his job as a judge is to apply the actual facts of the case to the law, without steering the outcome.

Instead of ruling on the facts and the applicable law on which ballots are valid, DelConte has created a web of several hundred contested ballots where any change in their validity looks as though he is picking a winner — and a loser. Meanwhile, the 800,000 people in the district are without representation in the House.

There are lessons for the entire country from the chaos in New York’s election and those in other states.

Sudden changes in election laws during 2020 created chaos and undermined public confidence in the process. Some 40 percent of voters still don’t accept the 2020 results. 

In addition, the whole notion that the country had to move to a mail-in voting system because of COVID-19 was found to be erroneous last November as millions of people voted safely at polling places. This shows that mail-in ballots should be scaled back. 

Mail-in ballots should only go to voters who request them — there should be no automatic mailing to all registered voters. Many state voter registration lists are in a shambles, filled with voters who have moved, died, or are otherwise ineligible. 

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Safeguards against fraud that were dispensed with in many states during 2020 — such as having voters request and sign absentee ballot applications — must be restored. Signatures of voters on absentee ballots should be compared to the signature of the voters on their registration record before they are accepted.

The deadline in every state for receipt of a completed absentee ballot should be Election Day itself. 

Vote harvesting should be banned in every state. Giving campaign staffers and party activists the ability to pick up and handle the ballots of voters can subject voters to coercion and intimidation.

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Both the U.S. Supreme Court and the bipartisan Commission on Federal Election Reform, co-chaired by former President Jimmy Carter and former Secretary of State James Baker, have found that fraud and errors by election officials can make the difference in a close election. 

If there is one thing we learned in the 2020 election, it is that we have to do more to build public confidence in our elections. That means giving our election officials better resources and training and restoring the safeguards against chaos and fraud that so many states dispensed with last year.

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