The recent decision by the U.S. Supreme Court allowing partisan gerrymanders (Rucho v.
Common Cause, 139 S.Ct. 2484 (2019)) and the ruling by the U.S. Court of Appeals for the
Tenth Circuit holding that members of the electoral college are free to vote their conscience
(Baca v. Colorado, — F.3d.— (10th Cir. Aug. 20, 2019)) will each have far-reaching
consequences for our elections—and each will be written about in due course. Today, we
address several of the latest rulings by New York courts concerning limitations on the public’s
involvement in elections; the apparent lack of consequences for forgers in ballot access cases;
and the doctrine of “unintentional fraud.”
The New York Court of Appeals very rarely grants leave to appeal in an election case. This year
was no exception, but it did hear an appeal from an Appellate Division, Third Department case
in which there were two dissents. CPLR §5601. In Kosmider v. Whitney, —- N.Y.3d —-, 2019 WL
2453619 (2019), the court, in a 4-3 decision, made it even more difficult for voters in New York
to confirm results in close elections. (A narrative of the decision appeared in the New York Law
Journal by Lynn K. Neuner and William T. Russell Jr. in Scanned Ballots Protected FromDisclosure, NYLJ, July 16, 2019.) Unlike many states that require a manual recount when the
margin in a race is close, New York has no such automatic fail-safe provision (Johnson v.
Martins, 15 N.Y.3d 584 (2010)), though a local board of elections may impose one. In New York
City, for example, if the margin between the two leading candidates is under one-half of one
percent, a hand-recount of every ballot will be undertaken. This policy led to the manual
counting of some 90,000 votes in the Queens District Attorney Democratic primary election
race last month.
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