New York City

Could Cabán still beat Katz?

The Democratic campaigns for Queens district attorney are back in court today to litigate the fate of more than 100 affidavit ballots. Here are the three main questions that could determine which side prevails.

Public defender Tiffany Caban listens as Queens borough President Melinda Katz speaks during a Queens District Attorney candidates forum at St. John's University.

Public defender Tiffany Caban listens as Queens borough President Melinda Katz speaks during a Queens District Attorney candidates forum at St. John's University. Mary Altaffer/AP/Shutterstock

The Democratic primary for Queens district attorney has featured many twists and turns – with maybe more yet to come.

The campaigns are back in court today to litigate the fate of more than 100 affidavit ballots. Public defender Tiffany Cabán’s side argues that these ballots were improperly excluded from the vote tally, even though the voters were eligible to participate. The campaign of Borough President Melinda Katz argues that if those votes – which were selected by the Cabán camp – are counted, then all other outstanding affidavit ballots that meet the same criteria must be as well. 

A manual recount has given Katz a 60-vote lead in a race that appeared to be going Cabán’s way on election night. By certifying Katz as the winner this week, the city Board of Elections merely ended one stage of the race while beginning another. However, at this point one thing is clear: With the recount now done, the final result will come down to affidavit ballots – and whether to count those in which voters did not check a box that indicated their political party affiliation.

Here are the three main questions that could determine which side prevails. 

Did incompetence at the Board of Elections sink the Cabán campaign?

When poll workers cannot locate someone on the voting rolls, the voter has to cast an affidavit ballot, also known as a provisional ballot. Those ballots are kept in a sealed envelope. The validity of these votes hinge on voter registration records andthe information that the voter provides on the envelope itself. This means that even if a voter in the Queens DA race is a registered Democrat their votes could still be invalidated if they failed to fill out the affidavit ballot in all its particulars. “The statute says that all sections of the affidavit ballot envelope must be filled out, and the board has an obligation to follow the existing law,” election lawyer Sarah Steiner told City & State earlier this month. However, the Cabán campaign told The New York Times this week that whether or not voters followed ballot instructions should not matter. Campaign attorney Jerry Goldfeder said that poll workers have a responsibility to make sure that voters complete their affidavit ballots completely. The fate of the Cabán campaign could thus depend on whether the courts agree – and to what extent it affects affidavit votes – media reports put the number at 114 disputed ballots from registered Democrats who failed to mark their affiliation. Validating these are key to a potential Cabán victory.

How could Cabán ever win now?

It all comes down to how narrowly the courts will validate affidavit ballots. About 2,800 affidavit ballots were cast in the election. The DOE deemed about 2,300 of these to be invalid. To win, Cabán needs the courts to reinstate at least 61 out of the 114 dispute affidavits – assuming who the vote was cast cast for her, which is still unknown – to make up her current deficit. The Katz campaign has accused Cabán of “cherry-picking” affidavit ballots from areas of Queens that disproportionately voted in her favor, but even if a court validates those ballots without opening any others, there is no guarantee that Cabán will actually take the lead after those votes are counted. Remember, those votes are in a sealed envelope! Cabán needs to win the vast majority of them to make up for Katz’s lead. With her 60-vote lead, Katz only needs 28 of those votes to guarantee her victory, because there would only be 86 ballots left for Cabán – assuming that none of the other candidates got any of these votes. Moreover, if Cabán gets those counted, Katz could fight back by arguing for counting ballots from her stronger precincts that were thrown out for similar technical reasons. Cabán needs to win in court, get lucky with the results of these 114 disputed affidavit ballots and not lose ground on other ballots.

Will Gov. Andrew Cuomo act on a bill loosening the requirements for affidavit ballots?

Don’t bet on it. The governor has given Cabán supporters no reason to believe that he will muddy the waters by signing a bill that would loosen the requirements for validating an affidavit ballot. If he were to sign the bill, then it would take effect immediately and the campaigns – in theory – could go to court to see if that meant it would apply to ballots that have already been cast in an election that the BOE has already certified. A Cabán victory remains a remote possibility at this point. But never say never in the Queens DA race. City & State has learned that lesson the hard way. 

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