It’s been a month since election day, November 8, and we still don’t know who won the race for Assembly District 23. However, after a month of a lawsuit, a court decision and a recount in a very close race, we may know soon if Stacey Pheffer Amato will continue as Assemblywoman or if challenger Thomas Sullivan will become District 23’s new Assemblyman.
The Assembly race in District 23 became a heated one between incumbent, Pheffer Amato, who has held the position since 2017, and Breezy Point resident and U.S. Army reservist Sullivan. When the counting stopped on election night, November 8, Republican challenger Sullivan was up by 246 votes over Democrat Amato with 94% of the vote counted. But with a decision so close and absentee ballots still to be counted, neither candidate was able to claim victory that night. And so began a long, ongoing process to determine the winner.
After the remaining ballots were counted, by November 22, Sullivan only had a three-vote lead over Amato. But a week prior to that, Amato’s campaign had already filed a lawsuit demanding a recount. As part of that lawsuit, another issue was brought up by Amato regarding 94 ballots that were invalidated by the NYC Board of Elections. According to NY Election Law, absentee ballots must be placed in a sealed, smaller ballot envelope, and then sent in a larger envelope. The BOE invalidated 94 ballots because these instructions hadn’t been followed. According to the court case, “Of the 93 absentee ballots which were invalidated, the spreadsheet notes that 62 of these ballots were invalidated because ‘Ballot Envelope Not Sealed.’ For the remaining 31 ballots on the spreadsheet, these ballots were invalidated because ‘Ballot Not In Ballot Envelope.'” At a hearing on December 1, it was requested that another ballot that was discovered be included in this count.
The Board of Elections admitted that when they invalidated these 94 ballots, they did not give notification to the voters who had sent them, as they are required to, to give them an opportunity to cure their ballot, or fix the discrepancy so their vote may still be counted. Due to this, and the fact that those ballots came from qualified voters, on December 5, Hon. Joseph Risi ordered the BOE to officially count the 94 ballots that had been invalidated. Additionally, due to how close this race is, a manual recount is required, and is underway.
The court decision has sparked different reactions from each campaign. Amato’s team, which fought for the 94 ballots to be counted, was pleased with the ruling. On Tuesday, December 6, her team released a statement explaining what had happened. Amato’s campaign spokesperson, Doug Forand said, “Voting is the cornerstone of American democracy. We will not allow anyone to silence the voices of voters who have exercised their constitutional right to have their votes counted. We are grateful to the courts for following the law and rightfully ruling that these ballots must be counted.” The statement, which Amato shared on social media along with the caption “Democracy prevails!” said the recount is ongoing and with 60% of the votes counted, she was in the lead by seven votes as of Tuesday, and the recount was on its way to being complete by Thursday, December 8.
Sullivan’s team was not pleased with the decision and released their own statement, bringing up concerns over the court decision, as the signature of Stacey’s mother, Audrey Pheffer, who serves as Clerk of the Queens County Supreme Court, appears on the bottom of the court ruling. “Stacey Pheffer Amato is a second-generation politician whose mother has held the chair for which she is running for re-election,” Sullivan’s statement read. “Stacey Pheffer Amato’s mother is the Queens County Clerk. Audrey Pheffer signed a decision with Judge Joseph Rissi overruling a bipartisan Board of Elections Committee’s decision on 94 absentee votes deemed to have major faults and were disqualified.”
This was followed up with Sullivan saying he has filed an appeal to the recent court decision with the Brooklyn Appellate Court. “In an age of Americans being concerned with Election Integrity, Tom Sullivan wants to shed a light on the appearance of impropriety created by the Stacey Pheffer Amato’s mother. Audrey Pheffer signed Judge Risi’s decision,” the statement continued. “Tom Sullivan is asking Stacey Pheffer Amato to respect the integrity and appearance of the bipartisan process.”
Other local elected officials have also released statements expressing concern over the recent court case and decision, including Republican Councilwoman Joann Ariola, who cited a similar court case with different results. “It’s difficult not to challenge the integrity of a decision when one of the signatures on the ruling is the mother of the plaintiff,” Councilwoman Joann Ariola said. “This ruling by Judge Risi goes directly against a previous ruling in the case of Mannion vs. Shiroff in November, in which Republican candidate Rebecca Shiroff sought to have three ballots containing unsealed envelopes declared valid. In that instance, a judge in Onondaga County declared unsealed envelopes to be a ‘fatal defect’ and affirmed that they must remain invalid and uncounted.
“Now, less than a month after that decision against a Republican candidate affirming that unsealed envelopes constitute a fatal defect, we see the reverse happening,” the Councilwoman continued. “When a Democratic candidate is pressing for unsealed envelopes to be declared valid – and her mother is the county clerk, no less – we see a judge deciding that this previously noted defect is not such a big deal and can be overlooked. This is a bold example of the double standard we’ve seen play out time and again in modern politics, and it is nothing short of unacceptable.”
As noted, the manual recount is underway and expected to be complete on Thursday, December 8, but with Sullivan’s appeal in the Brooklyn Appellate Court pending, further delays are expected. In a video posted to social media, Sullivan said, “I’m looking forward to our day in court on Monday, December 12.”