Latest in the AD23 Race

Another week, and still no winner of the election in Assembly District 23. But plenty has happened since.

Last we left off, a hand recount of the more than 30,000 ballots in the Assembly District 23 race between Assemblywoman Stacey Pheffer Amato and republican challenger Thomas Sullivan, was underway. After we put the paper to bed, it was announced that after the recount, Pheffer Amato was ahead by just ONE vote. But other factors are still at play.

On Monday, December 12, Sullivan had his day in appellate court after appealing the decision made by Queens Supreme Court Justice Joseph Risi on December 6, in which he ordered the NYC Board of Elections to include the 94 ballots that were previously invalidated because they were not sealed or placed properly in the ballot envelopes. The BOE had dropped the ball on these ballots by not following election law and notifying those 94 voters about the ballots being invalid and giving them the opportunity to cure their ballot so it can be counted. For that reason, Hon. Risi decided all 94 should be counted toward the ballot.

Sullivan filed an appeal in Brooklyn with the New York Supreme Court Appellate Division: Second Judicial Department, in a case that was heard on Monday. On Tuesday, December 13, four judges of that court decided that the BOE should follow the election law  “by notifying each of the 94 voters whose absentee ballots were invalidated on the basis of ‘Ballot Envelope Not Sealed’ or “Ballot Not in Ballot Envelope” of the invalidation of his or her absentee ballot, the reason for such invalidation, and the opportunity and procedure to cure the defect by filing a cure affirmation,” meaning those 94 voters will now have to be notified and given the chance to cure their ballot, for them to be counted. Voters typically have up to seven days to mail their cure affirmation or return it in person to the BOE, for their vote to be counted. As we go to press, Sullivan has not publicly commented on the Appellate Court’s decision but did call for a special meeting for supporters to meet at the Belle Harbor Yacht Club on Wednesday, December 14 to hear the next steps.

Meanwhile, Pheffer Amato has already filed another lawsuit regarding another matter. On December 9, in the Queens County Supreme Court, where she filed her other lawsuits, Pheffer Amato filed a lawsuit requesting that 13 ballots that were not counted by the BOE, as they were treated as an “overvote” and three ballots that were voided due to having an “identifiable remark,” and requested that those 16 ballots be counted. This case will be held on Thursday, December 15.

Another piece of the count are four affidavit ballots, that have not yet been counted toward the tally. According to a tweet by Zach Williams, a reporter for the New York Post, these four ballots remain sealed pending the end of litigation. Two are from registered Republicans, one is from a Democrat, and one is from an independent voter.

With Amato leading by one in the recount, Sullivan would need three of those four ballots to be for him to win, and that’s only if the 94 challenged ballots are not counted toward the final count.

In an interview with the Queens Daily Eagle, Sullivan had expressed that it was likely his only chance to see victory, “My path to victory is that those affidavits go my way and those 94 [absentee] ballots are kept out,” he told the Eagle.

With more litigation and ballots to be cured, the results will still be up in the air for an indefinite amount of time.

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