Haven’t written an update on the last uncertified race in the country for a while because there was, ahem, some other news happening. But it turns out not that much has changed. We’re still in the midst of Judge DelConte’s vote by vote reconsideration process and, as things stand now, the soonest that process could result in a winner is next Friday, January 22nd:
Attorneys for both campaigns will be allowed to file legal briefs on the unprocessed, but timely, DMV registration applications by Thursday. Oral arguments on the online voter registration applications will be held Friday at 1 p.m. in Oswego County Supreme Court.
Any remaining legal briefs connected to the judicial review are due on Wednesday, Jan. 20 and final oral arguments will be Friday, Jan. 22 at 11 a.m. before DelConte.
Following the final oral arguments, DelConte is expected to issue a final ruling in writing on the ballots in question. Based on the results of the judge’s decision, there should be final election results to certify in New York’s 22nd Congressional District, barring appeal.
The last two words in that final sentence “barring appeal” are the big caveat. Even if Judge DelConte gets out a final ruling on the same day as the oral arguments, which seems unlikely, one side or the other could still appeal the outcome. And that appeals process could drag on for weeks or more likely for months:
Jarret Berg, a New York election lawyer and former clerk to an Appellate Division judge in Brooklyn, said the case will likely narrow on appeal. Lawyers for the candidates will have to focus on a few core issues of the dispute. They will have to base their appeals on matters where they think DelConte got it wrong, Berg said.
“You can’t just appeal a decision because you don’t like it,” Berg said. “You have to point to a perceived error of law made by the judge. They’re going to be limited from an appeal standpoint.”…
Berg said he expects any election case to be expedited if it proceeds to the Appellate Division, where a panel of judges often takes months to decide a case…
After a panel of judges issues the Appellate Division ruling, either candidate could appeal that decision to New York state’s highest court, the Court of Appeals.
To sum this up, if there’s an appeal it may get to Appeals Court quickly but they probably will need a month or more to make a decision and even then, that decision could be appealed again. And even if all of that is settled, either side could in theory appeal the whole thing directly to the House of Representatives. As I’ve mentioned before, one race in Iowa has already bypassed state courts and taken that route.
All of that assumes neither side is willing to drop out of the race after DelConte’s ruling. But with the two sides separated by 29 votes in the last unofficial tally, I’m not sure anyone is planning to concede. Tenney’s camp has already reserved the right to appeal an earlier decision by Judge DelConte. They haven’t filed anything yet, they are just keeping their options open. And Brindisi’s camp was still adding additional lawyers (he now has six) to his team just a couple weeks ago. So all the signs point to this battle continuing.
Realistically, NY-22 may not have a representative in the House until sometime in the spring.