In a “Memorandum in Support of Order to Show Cause” filed on Monday, attorneys representing a Democratic congressional candidate, who appears to have lost by a razor-thin margin to his Republican opponent, call for a hand audit of the votes, citing “mounting evidence of significant irregularities in the tabulation of ballots.” In particular, the attorneys point to the “likelihood of a material discrepancy” between a manual audit tally and a “voting machine or system tally” as rationale for ordering the hand count.
In the memorandum, filed with the Supreme Court of the State of New York by attorneys representing the efforts of former incumbent Democrat Rep. Anthony Brindisi — who appears to have lost his seat in New York’s 22nd congressional district to GOP candidate Claudia Tenney — the attorneys argue, “There has also been mounting evidence of significant irregularities in the tabulation of ballots. Because the candidates are currently divided by a vote count of a mere 122 ballots as of this morning, these errors and irregularities threaten to deny the voters the election of their candidate of choice.”
The current makeup of the House is comprised of 221 Democrats and 211 Republicans, with three seats still vacant. In Louisiana, Julia Letlow, the widow of GOP Representative-elect Luke Letlow, who died of complications from COVID-19 only days before he was to be sworn in, will run in a special election on March 10. Democratic Rep. Cedrick Richmond of Louisiana resigned on Jan. 15 to join the Biden administration; his seat will likely be filled by a Democrat.
Thus, if Letlow and Tenney win their seats, the GOP will trail in the House, 222-213, a difference of just nine votes. That would mean they would only need to win a difference of five seats in 2022 to take over the House.
The attorneys state in the memorandum:
The General Election for the public office of member of Congress, 22nd District of New York occurred on November 3, 2020. Since then, substantial errors and irregularities in the conduct of the election have come to light. As these proceedings have continued, that evidence has only mounted. In addition to failures to follow New York’s election law, particularly by Respondent the Oneida County Board of Elections (“Oneida County”), […] there has also been mounting evidence of significant irregularities in the tabulation of ballots. Because the candidates are currently divided by a vote count of a mere 122 ballots as of this morning, these errors and irregularities threaten to deny the voters the election of their candidate of choice. As a result, a hand audit is warranted under New York law and should be immediately ordered. Specifically, and in the language of the statute, there is substantial evidence which “indicates that there is a likelihood of a material discrepancy between such manual audit tally and such voting machine or system tally, or a discrepancy as defined in subdivision three of section 9-208 of this chapter, which creates a substantial possibility that the winner of the election as reflected in the voting machine or system tally could change if a voter verifiable record audit of additional voting machines or systems or of all voting machines or systems applicable to such election were conducted.”
The Utica Observer-Dispatch reported on Tuesday, “Republican Claudia Tenney leads Democrat Anthony Brindisi by 125 votes in a rematch of the 2018 election. Five county boards of elections in the district recorded final tallies to state Supreme Court Justice Scott DelConte on Tuesday, while Cortland County updated its results on its website. Results from Herkimer County were not posted Tuesday. While Oneida County is temporarily barred from certifying its results by DelConte, it wasn’t due to any error, but to prevent final certification of the race.”
The memorandum attempts to buttress its case by citing various discrepancies, including below:
On December 21, 2020, the manual tabulation at the table resulted in 33 votes for Petitioner Claudia Tenney (“Tenney”), 49 votes for Cross-Petitioner Representative Anthony Brindisi (“Brindisi”), and 3 “undervotes,” but the machine tabulation resulted in 33 votes for Tenney, 47 votes for Brindisi, and 5 “undervotes.”
On December 22, 2020, the manual tabulation at the table resulted in 92 votes for Tenney, 125 votes for Brindisi, and 11 “undervotes,” but the machine tabulation resulted in 91 votes for Tenney, 122 votes for Brindisi, and 15 “undervotes.”
On December 28, 2020, the manual tabulation at the table resulted in 103 votes for Tenney, 50 votes for Brindisi, and 7 “undervotes,” but the machine tabulation resulted in 103 votes for Tenney, 49 votes for Brindisi, and 8 “undervotes.” On January 27, 2021, the manual tabulation at the table resulted in 133 votes for Tenney, 40 votes for Brindisi, and 8 “undervotes,” but the machine tabulation resulted in 133 votes for Tenney, 39 votes for Brindisi, and 9 “undervotes.” (MacIntosh Aff. ¶ 13).
On January 28, 2021, the manual tabulation at the table resulted in 77 votes for Tenney, 72 votes for Brindisi, and 7 “undervotes,” but the machine tabulation resulted in 77 votes for Tenney, 71 votes for Brindisi, and 8 “undervotes.” (In addition, on December 22, 23, 28, and 29, and again on January 27, 28, and 29 of Oneida’s second and third canvasses, a total of 52 ballots were tabulated by hand, these hand counted ballots were then added to the machine tabulated totals.
All told, there was a discrepancy of nine changed votes during the second and third canvasses of Oneida’s administratively rejected affidavit and absentee ballots alone. Oneida County counted 1,127 ballots during the course of its second and third recanvasses.
The memorandum continues:
The nine-vote change yields an error rate of 0.8%. There were 325,548 votes cast in total in the race for New York’s 22 Congressional District. Applying the same error rate to 325,548 ballots, there may have been as many as 2,599 votes that the machines did not read. Even if the problem was with Oneida County tabulation machines only, of the around 100,000 ballots cast in Oneida, there may have been 800 votes that the Oneida County machines failed to read alone. That figure far exceeds the margin between the two candidates in this race, and based on this small sample size at least, appears to disproportionately affect Brindisi.
The memorandum concludes:
Given the above evidence of material discrepancies in vote tallies that potentially affect hundreds of ballots, and the hundreds of ballots preserved for this Court’s review and review by appellate courts, the portion of the Court’s order directing County Boards to certify election results should be stayed until a hand audit can be conducted and appeals resolved.