Expect Most of the Primary Vote Counting to End in Court, in Confusion, & in Distrust

By: Gary Tilzer

Election counting in most races is complex. It takes time and the outcome in close races depends on the quality of attorneys each candidate has as well as which judge hears the case. This year, Rank Choice Voting (RCV) will make the counting even more complicated. As the BOE and the candidates will be going over thousands of questionable ballots it will be great for election lawyers because every major candidate will hire one once the counting process begins.

The media has done a poor job preparing New Yorkers for how the counting will be conducted and the problems that candidates will face. Notably, it was recently published that since the city’s Board of Election (BOE) purchased and approved new software, the city elections will avoid lengthy hand tallies in the primary election this year. While it is difficult in liberal NYC to look at the accuracy of the election counting process after Trump’s charges in the 2020 election, there is a great possibility this year for winners and losers to be inaccurately determined and declared. Therefore, before we start the most difficult vote count in NYC history that could easily go wrong and be attacked as undemocratic, we should consider the history of NY vote counting, including recounting of votes by hand.

New Yorkers Were Warned Two Months Ago that RCV was “Unready for Its Close-Up”

A couple of months ago we were warned by two recently elected council members in a Daily News op-ed that “Ranked-Choice …[is] Unready for its Close-Up.” Daily News 4/15/21 Selvena Brooks-Powers and Eric Dinowitz, who just won their special elections, expect that many races in the primary will need hand recounts because races will be close and the complicated voting counting under RCV will cause uncertainty with accuracy. The new council members also worried that older voters who are used to voting for just one candidate at a time will face a steep learning curve. They reflected on how the voters in their races were confused how to rank their choices, that it took BOE workers at least three days to painstakingly count each ballot by hand and worried what RCV could mean for the outcome of the races.

The newly minted city council members recalled that “for each round of the reallocation process, paper ballots were stacked high in bins for each candidate. When a candidate was eliminated, the whole hand-counting process started over again, with BOE workers counting ballot after ballot. Ultimately, it took more than three weeks from the election for results to be certified.” Taking into consideration the amount of time it took for BOE to process RCV count for these two city council members and the large number of citywide primary races, June election results are expected to be a national embarrassment. If the RCV vote tabulation process took three days in each of the city council member races who were alone on the ballot, the prospect of having to count dozens of Council races, multiple borough president races, controller, public advocate, and mayor all on the ballot at the end of June is scary. Moreover, no one knows what the BOE will do if the courts ordered hand recounts in overlapping districts at the same time. They can be counting and recounting ballots for months.

Ironically, both, the NY Times and the Daily News published editorials in support of RCV prior to the vote on City Charter amendment vote in 2019. The Post editorial asked voters to “vote No” on the amendment proposition. NY Post 10/25/19. The Post wrote: RCV “is a not-terrible idea whose time hasn’t come.” It “asks a lot of voters, and of the notoriously dysfunctional city Board of Elections. It is an invitation to major confusion.” NY Post 10/25/19

The History of NYC Recent Voting Process: Paper Ballots for Democracy

In 1992, which Mayor David Dinkins announced that the city was going to purchase new electronic voting machines, critics immediately challenged his deal as corruptible and undemocratic. The electronic voting machine lacked paper ballot backups, which meant their accuracy could not be verified. The most effective challenges were raised by Douglas Kellner, as a member of the City and State Boards of Elections, and Ronnie Dugger, in a long article in the New Yorker magazine.

Kellner argued for a voting system that “people of reasonable intelligence” can monitor. “It really changes the whole nature of democracy if one can’t have the public verify the way the votes are counted,” he said. Moreover, Kellner called it “virtually impossible” to detect and prosecute computer voting fraud “because it takes so long to trace it and the statute of limitations is short.” Dugger’s article quoted a Pennsylvania election official: “Computerized vote-counting doesn’t occur in the light of day; it occurs inside silicon in a little black box. That box is completely under the control of the vendor.”

As Tammany Hall’s Boss Tweed used to say, it is not the voter himself, but he who counts the vote, who controls the outcome of an election. The counting on the Dinkin’s electronic voting machines was supposed to involve pressing buttons or touching a screen next to a candidate’s name. The vote was to be recorded on a tape cartridge. When the polls closed, the cartridge was to be taken to election headquarters, where all tapes were to be read by a computer. Control, in this case, was to be in the hands of the specialists who write the code that translates button or touch impulses into recorded votes.

The Board of Elections withheld the final go-ahead of the Dinkins contract for voting machines. His contract was later canceled, because it became bogged down in litigation over the machines not having a paper backup.

After years of delays and $50 Million of fierce lobbying, the city’s Board of Elections (BOE) signed a contract for over $70 million with Election Systems and Software (ES&S), to provide new electronic voting machines with a paper ballot backup system in time for the September 2010 primary.

After the new voting machines were ordered election officials claimed they will quicken the way votes are counted, providing a paper trail backup for each vote, and make lines at the polls move faster. The new machines, the (ES&S) DS200 optical scanner, will read and tabulate paper ballots cast by votes on Election Day and make public the vote on election day.

There Will Be Dozens of Hand Counted Races . . . Is the BOE Prepared?

The big secret of the new (RCV) counting software that there is no way “people of reasonable intelligence” can monitor the tallies. That is the words the Board of Elections’ Commissioner Kellner used in rejecting the Dinkins 2010 voting machines that lacked paper ballot backups system.

So far, the press and everyone else has ignored that not all the RCV counting will not be done by a vendor with an electronic calculation program. But the history of close elections in NY indicates candidates are given the right by the State’s Election Law to go to court to demand a hand recount, most do. This year with the confusing RCV and the high number of candidates, elections, there is expected to be dozens and dozens of requests for hand counts and court orders to do them. Does the BOE have the work force to handle the possible workload of hand counting dozens of races at once? We know the there is no chance the tallies will be done on a timely basis as many reporters claim.

NY1 reporter Emily Ngo wrote on May 25th “State approves vote-counting software (at the last minute), allowing city to avoid hand tally in primary elections.” WCBS reported that “New Yorkers can expect to find out who won the city’s upcoming Democratic mayoral primary more quickly than they would have if the New York State Board of Elections hadn’t acted Tuesday to approve software for tabulating ranked-choice voting results. The decision means the city will now avoid a lengthy hand count of the ballots cast in the race next month. Both media stations and others are wrong according to the state election law. The state’s election law provides the courts and the BOE with the right to order hand-counts any election they want, and they have done so in hundreds of elections over the years, before RCV:

NY Election Law- The standards set forth in subdivisions are not intended to describe the only circumstances for a partial or full manual count of the voter verifiable paper audit record, but instead are designed to set a uniform statewide standard under which such hand counts must be performed. The local boards of elections, as well as the courts, retain the authority to order manual counts of those records in whole or in part under such other and additional circumstances as they deem warranted.

The winner of the last year race for central New York’s 22nd Congressional District was not declared for three months after the election, when a state judge ruled that Republican Claudia Tenney defeated U.S. Rep. Anthony Brindisi by 109 votes. That ruling came after the judge spent three months recounting the ballots and trying to fix a myriad of problems with vote tabulation. It took seven weeks last year until Queens DA candidate Tiffany Cabán conceded to Melinda Katz last year and that election was not using the complicated RCV system. Cabán who beat Katz on primary day by 1,100 votes, conceded to Katz after falling behind by 60 votes, after counting the absentee ballots and going through a hand recount, but before she exhausted all her legal options. Journalist’s court challenge would reveal uncounted Queens DA primary ballots–Queens Eagle, 10/7/19. In the extremely close Democratic primary for Queens District Attorney, hundreds of affidavit ballots rejected by the Board of Elections could have been a game-changer. Or they could have reinforced the outcome.

In the Past, Judges were the Problem for Some Independent Democratic Candidates:

NEW YORK; STEALING AN ELECTION–NY Times 1982. Someone is trying to steal an election in Brooklyn and so far, they are getting away with it. The judge who issued the initial ruling in the case was either confused or something worse; he abdicated all responsibility for determining which side was to blame for the voting irregularities and he chose to ignore crucial evidence that would have helped him reach such a finding. Instead, he threw out the results and ordered a new election for next Tuesday, which benefits the loser in the original vote, Vander L. Beatty, the man to whom the evidence seems to point. Someone is trying to steal an election in Brooklyn and so far, they are getting away with it.” The court of appeals cancelled the lower courts orders for a special election and Major Owens became the congressman.

The Good Government Groups Claimed that RCV Would Give Voters More Choice, it seems to Increase Deal Making Between Candidates, Lobbyist Consultants and Special Interests

“Any appearance on your ballot, even as your fifth choice of Adams or Yang, can get them elected,” the United Federation of Teachers recently told its members. . . Our City, a super PAC, backed by progressive groups is also arguing that anyone else would be better than Mr. Yang or Mr. Adams, don’t make them even 4th or 5th place votes. Congressman Jefferies rank Adams number two after announcing Wiley his number 1 pick. . . Daniel Rosenthal, a state assemblyman, and two Jewish groups in Queens just ranked Ms. Garcia second. Their first choices were split between Mr. Yang and Mr. Adams. . . Two of the leading mayoral candidates list a second choice: Mr. Yang backs Ms. Garcia; Mr. Donovan, the former federal housing secretary, supports Maya Wiley, a former counsel to Mayor Bill de Blasio.

Good Government Groups Claim that RCV Going to Discourage Candidates from Attacking Each Other . . . 2021 Candidates

Candidates are both attacking each other and organizing anonymous hits against their opponents. It has already become clear that candidates running against Adams, helped the online news blog Politico research their investigative article that claimed Adams lived in NJ. It is still not clear what candidate if any organized the news conference of the woman who claimed that Stringer sexual abused her. The good government groups were also wrong that candidates would not attack each other: “Eric Adams attacks Andrew Yang over reaction to Times Square shooting” AMNY, “Mayoral candidate Andrew Yang accused frontrunner Eric Adams of secretly living in New Jersey” NY Times, “Maya Wiley hits Andrew Yang over NYPD knowledge” NY Post, “Adams and foes spar over class size comments” Politico, “Wiley accuses rival Eric Adams of parroting Republican attacks” Daily News.

RCV Eliminated Run-Offs Where Voters Can Better Choose Candidates After More Debates and Discussions

Good government groups have argued for cost-effective solution to expensive, low turnout election would be a system that allows for instant runoffs like RCV, instead of getting voters to go back to the polls two weeks after the primary for the final bout. What the voters lose under RCV is getting to know candidates better during the runoff’s campaigns and debates.

Counting the Votes Including the Five RCV Rounds–Complicated

1. Under New York state law, the Board of Elections can only tally the results from early voting on Primary Day on June 22. However, those counts will be incomplete because the absentee ballots and RCV tallies will not be included.
2. Because of the NYS Election Law, the BOE will not begin opening the mail ballot envelopes until June 28. This gives the ballots a week to make their way through the Postal Service and it gives officials time to compare the poll books to the absentee ballot requests to ensure no one tried to vote twice.
3. Then, the Board of Elections will notify voters who have made errors on their absentee ballots — such as neglecting to sign the inner oath envelopes — that they can fix or “cure” those ballots. The voters’ responses are due seven business days later, July 9. “So, considering we have a federal holiday also — the Fourth of July that falls on the fifth — it would take the BOE until the week of July 12 to start running the RCV rounds.
4. There is a bill to allow BOE to count the votes as they come but as of Sunday June 13th it has not been signed by the governor.
5. Whenever the absentee count will be released, it will be done with new software, done by vendors and BOE employees who were just trained on the system this week. There could be objections to the computer count by the candidates.
6. Assuming no one wins a majority in the first round of counting, after the city’s Board of Elections which includes receiving and process mail-in ballots.
7. The Second Round–of the mayor’s race begins with determining which of the 13 candidates received the smallest number of votes in the first round — and knocking that candidate out of the race. That last place candidate’s 2nd round votes will be distributed to all the remaining 12 candidates to make a new tally.
8. The Third Round – of the mayor’s race begins with determining which of the 12 candidates received the smallest number of votes in the first round — and knocking that candidate out of the race. The candidate dropped in the 3rd round 2nd round votes and the was the candidate dropped 2nd round 3rd round votes will be distributed to all the remaining 11 candidates to make a new tally.
9. The Fourth Round – of the mayor’s race begins with determining which of the 11 candidates received the smallest number of votes in the first round — and knocking that candidate out of the race. The candidate dropped in the 4th round 2nd round votes, the was the candidate dropped 2nd round 4th round votes and the candidate dropped in the 3rd round 3rd round votes will be distributed to all the remaining 10 candidates to make a new tally.
10. The Fifth Round – of the mayor’s race begins with determining which of the 10 candidates received the smallest number of votes in the first round — and knocking that candidate out of the race. The candidate dropped in the 4th round 3rd round votes, the was the candidate dropped 2nd round 5th round votes, the candidate dropped in the 3rd round 4th round votes and the candidate dropped in the 5th round 2nd round votes will be distributed to all the remaining 9 candidates to make a new tally.
11. The Sixth Round – of the mayor’s race begins with determining which of the 9 candidates received the smallest number of votes in the first round — and knocking that candidate out of the race. The candidate dropped in the 4th round 3rd round votes, the was the candidate dropped 2nd round 5th round votes, the candidate dropped in the 3rd round 4th round votes and the candidate dropped in the 5th round 3nd round votes, the candidate in the 6th round 2nd round votes will be distributed to all the remaining 8 candidates to make a new tally.
12. The Seventh Round–f the mayor’s race begins with determining which of the 8 candidates received the smallest number of votes in the first round — and knocking that candidate out of the race. The candidate dropped in the 4th round 4rd round votes, the candidate dropped in the 3rd round 5th round votes and the candidate dropped in the 5th round 4th round votes, The candidate dropped in this round 2nd round votes will be distributed to all the remaining 7 candidates to make a new tally.
13. The RCV Rounds will continue distributing RCV votes for 4 more rounds, until there are just two candidates left, and the winner of the race is the candidate who has at that time has a majority of the votes.

If as expected a lot goes wrong during the RCV tallies, expect there will be a public outcry to dump the RCV system. It would be important to examine the role the good government groups played on getting the city and voters to adopt RCV. Susan Lerner, the executive director of Common Cause, pushed for the coming train wreck of the Ranked Choice Voting system. Lerner, who has been in her job for decades, did not try to switch the city’s matching fund program to the “Democracy Vouchers system,” which puts New Yorkers in charge of which candidate gets matching funds, thus reducing the number of candidates running. Currently there are 13 candidates running for Mayor leaving the public confused, destroying debates and could lead to a low voting primary, which is quite amazing with the number of races being contested.