Did Doug Hoffman Actually Win the NY-23 Special Election? If So, Does It Actually Matter?

Narrowing margin in post-election canvass raises hopes for GOP/Conservatives, but recent Republican-set precedent may well dash that hope...

A potentially interesting situation is underway in New York's 23rd Congressional district where post-election canvassing of the recent special election for the U.S. House is still underway.

According to Syracuse's Post-Standard, the post-election canvass shows the race between Conservative Party candidate Doug Hoffman, who conceded on Election Night, and Democratic candidate Bill Owens, who was sworn in as the district's new U.S. Congressman last Friday, to be tightening as results are double-checked, errors are being found, and a few thousand absentee ballots are still uncounted.

The race, regarded by many as a a bellwether contest before next year's full Congressional elections, appeared to have swung in the Democrat's favor on Election Night, following the suspension of the campaign of Republican candidate Dede Scozzafava who threw her support to Owens after she'd dropped out just days prior to the election.

On Election Night, Owens was reported to be the "winner" by just over 5,000 votes, with 93 percent of the votes tallied, leading to Hoffman's concession. Since then, various errors have been discovered in at least two different counties, resulting in a gain of some 2,000 votes for the Conservative Party's Hoffman, bringing the latest tally to 66,698 to 63,672. Closer, now a 3,000 vote margin, but still favoring Rep. Owens.

There were, however, some 10,200 absentee ballots requested and distributed. And, as we understand New York's state election laws, none of them have yet been counted. Many of those ballots were purportedly cast when Scozzafava was still in the race. At that time, according to Hoffman's campaign at least, they might have had an edge in the then-three-way contest. So it's possible, though believed to be a long shot, that Hoffman could gain enough votes in absentees to eclipse Owens.

This scenario -- a Congressional candidate quickly sworn in, based on unofficial results shortly after a bellwether special election before all votes have been properly counted -- should be a familiar one to long-time readers of The BRAD BLOG. A very similar situation occurred in the 2006 race to replace the jailed Republican Rep. Randy "Duke" Cunningham in California's 50th Congressional district.

While Republicans who stood in support of the Conservative Party's Hoffman this year -- he was endorsed by the likes of Rush Limbaugh, Sarah Palin, Glenn Beck, Michelle Malkin and the Republican Party itself (only after Scozzafava was pressured to drop out) -- are finding some cause for optimism in the still-narrowing margin. Limbaugh certainly has, at least according to his breathless reporting of the goings-on in NY-23 on his show this morning.

But the legal maneuvering and judicial precedent that the then-Republican-led House pulled in the Summer of 2006, in order to keep votes from being counted in the CA-50 Special Election and, indeed, to keep the voters of California from even being able to contest their own election, should ensure that Hoffman can no longer, legally, take possession of the House seat via any challenge in New York -- even if he's eventually found to have received more votes than Owens!...

* * *

Following the 2006 Special Election between Republican Brian Bilbray and Democrat Francine Busby, serious questions were originally raised by The BRAD BLOG about the legality of the electronic voting systems used in the race. The Diebold machines used, as we'd discovered, had been sent home with poll workers for days prior to the election in what became known as "sleepovers." Those sleepovers effectively decertified those particular systems for use, given several findings and pronouncements by both state and federal officials following the discovery that the optical-scan systems in question contained computer code in violation of federal standards and state law.

Additionally, more than 50,000 votes had yet to be counted at all when the CA Sec. of State's office, then run by Republicans, hastily faxed a "certification" of the election, of sorts, to Congress, asserting that were no challenges to the election. That, despite the issues we'd very loudly raised about the unofficial results, and despite the fact that CA voters are allowed, by state law, to file a contest to any election in the days following official certification of any race.

A number of election integrity groups had issued statements of "no confidence" in those election results, the story was picked up by a number of print and broadcast MSM outlets -- the Washington Post asked "How could this be allowed to happen", CNN's Lou Dobbs called it "a threat to American Democracy," the Sacramento Bee reported the election showed "the threat to democracy is very real," among many others -- and the DNC's Voting Rights Institute itself even called for a full "manual count" of all ballots in the race. That count would never be allowed.

Then, as now, the candidate believed to be the "loser" -- Busby in that case, Hoffman in this one -- had conceded before all the votes had been counted. Then, as now, the state sent notice to the U.S. House Clerk based on unofficial election results before all votes were counted, attesting to the name of the "winner" and that the race had not been contested. Then, as now, the "winning" candidate -- Republican Bilbray in that case, Democrat Owens in this one -- was quickly shuttled to D.C. to be sworn in by the Speaker of the House. Back then it was Republican Dennis Hastert. This time it's Democrat Nancy Pelosi. Owens vote in favor of the House Democrats' Health Care legislation proved vital on Saturday, following his swearing-in just one day earlier.

The bad news, however, for now-hopeful Republicans/Conservatives is that when the results of the Busby/Bilbray race were contested by a California voter, the Republican-leadership of the U.S. House Administration Committee sent a letter [PDF] to the CA judge in the case, arguing that neither CA voters nor the state courts had jurisdiction to contest the election any longer, once the candidate had already been sworn into the U.S. House.

"The Court should dismiss this action," Paul Vinovich, Republican counsel to the House Admin Committee wrote to Superior Court Judge Yuri Hoffman. "State courts do not have jurisdiction to decide an action contesting the election of a member of the United States House of Representatives. That power is textually committed to the House of Representatives itself by the Constitution, a commitment that has been recognized by the Supreme Court."

"The United States Constitution unambiguously states that 'Each House shall be the Judge of the Elections, Returns, and Qualifications of its Members,'" Vinovich argued, quoting article I, section 5 of the Constitution. "As a result, the Constitution gives the House of Representatives 'the authority 'to determine the facts and apply the appropriate rules of law, and, finally, to render a judgment which is beyond the authority of any other tribunal to review.'"

"When plaintiff asks this court to decree following a recount '[t]hat the candidate with the most votes be judged elected,' plaintiff is asking the Court to issue an order that the House of Representatives is bound by the FCEA [Federal Contested Elections Act] not to honor," Vinovich instructed the judge in his letter.

On the House Republicans' assertion of the Constitutional argument that it was the Republican-led U.S. House of Representatives -- not the CA courts and not the voters in the state -- who had jurisdiction over the results of the election at that point, the judge accepted the argument and dismissed the case. Democracy was denied. The argument withstood appeal to a higher court, essentially, as time wore on and the court found the complaint to be moot.

Of course, we were outraged at the time that any candidate would be sworn in before all votes had been counted, that the House of Representatives would argue that neither the people of California's 50th district in San Diego, nor the courts of this state, would be allowed to determine their own Representative in Congress, and that the court was willing to accept what seemed such a patently absurd argument.

Nonetheless, the Republicans were successful in shutting down any and all state challenges and contests to that election -- simply through a speedy swearing-in ceremony. An appeal to Congress itself, under the FCEA would have been decided by the Republican majority, just as such a contest today would be decided by the Democrats who now enjoy the majority. The Republican candidate from 2006, Rep. Brian Bilbray, elected on illegal voting systems, installed under an official vote count, with results that were never allowed to be challenged with a manual count, still sits in the U.S. House today.

Given where the New York race could be headed, Democrats would be wise to remember that 2006 precedent so strongly argued by Republicans, and Republicans would be wise to remember it's never a good idea -- no matter how much it appears to be politically advantageous in the short-term -- to put partisan politics ahead of the small-d democracy of we the people.

• 2006 Republican House Committee Letter to CA Judge [PDF]

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Originally posted at the BRAD BLOG...

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Comments

[mkpp]

I so hope Hoffman wins!

[Balzac]

This will be a case of Republicans trying to build grievances for use as political capital in stalling legislation and for next election. Even having lost a close election, it makes sense to string out a recount as a matter of keeping up appearances and energizing their base with frustration.

[OdaNobunaga]

I'm sorry, can someone tell me how Hoffman can possibly win after he CONCEDED?!

At this point, no, it doesn't matter if he got more votes, because he conceded the race before they were all counted. End. Of. Story.

[AtomicallyLiberal]

Well, as I learned, a concession is not legally binding. It really means you will not challenge someone for their seat - it's kind of the "honor system."

[LMPE]

"Those who cast the votes determine nothing. Those who count the votes determine everything." - Joseph Stalin.

[ideasmatter]

The change that Hoffman will overcome a 3000 vote deficit in a 10,000 vote three way race is pretty slim. Moreover, according to the law this election has now been decided.

However, more important is that something like this should never be allowed to happen: elections cannot be formally concluded until all votes have been counted, and recounted in case of small differences. Congress should impose rules that demand that. This is not a partisan issue, it is in the interest of democracy itself.

[S1m0n]

A Hoffman win might be mathematically possible, but it's enormously unlikely. A three thousand vote margin in an election in which 141 thousand votes were cast is huge.

[BuzzingAlong]

Someone, please help me understand how absentee ballots purportedly cast when Scozzafava was still in the race presumably for Scozzafava would be of benefit to Hoffman?

[Brad Friedman - Huffpost Blogger]

As I understand it, the Hoffman calculation is based on them doing better when Scozzafava was in the race.

Eg. of numbers, not based on real ones, but just to give you an idea of what I understand to be their thinking here.

THREE-way race with 100 absentee ballots...
Hoffman (C) 35
Scozzafava (R) 35
Owens (D) 30
...gives 5 ballot gain of Hoffman over Owens.

TWO-way race with 100 absentee ballots after Scozzafava has endorsed Owens...
Hoffman (C) 45
Scozzafava (R) 0
Owens (D) 55
...gives 10 ballot gain to OWENS over Hoffman.

Again, those are made up numbers, but meant to give a general idea of what I believe the Hoffman mathematical speculation to be.

[S1m0n]

With a maximum of ten thousand absentee ballots not yet returned, to make up the 3,000 vote deficit Hoffman would have to win 2/3 of them to Owen's 1/3, despite the presence of Scozzafava's name also on the ballot.

Will Hoffman win 6600 votes from these absentees? No.

[rickd24]

There are two things to look at.

1) Hoffman is less likely to gain much on Owens from absentee ballots because Scozzafava would be getting a much larger percentage of the conservative (small c) absentee vote than she did in the Election Day voting. This assumes that not very many Scozzafava voters voted for Owens over Hoffman after Scozzafava dropped out on Election Day. Anyone know of any exit polls asking Owens voters who they would have voted for if Scozzafava had stayed in the race?

2) Are the absentee voters more conservative than the Election Day voters? The theory has always been that military votes are a large percentage of the absentee voters, and that they trend Republican. If there is an overall more conservative vote among the absentee voters, that might be enough extra votes to make up some of the difference.

[MuchMadness]

Is it too much to ask that states get their acts together and set rules that guarantee that all votes are counted in a timely manner and that the U.S. congress is able to know quickly who has been elected. First we had the Minnesota delays in the U.S. senate election, and now the public is supposed to accept that a congressman from NY was seated before a state was able to do its job properly and officially certify results?

Are our elections any fairer or more credible than Afghanistan's?

[Brad Friedman - Huffpost Blogger]

The MN election was so incredibly close, out of nearly 3 million votes cast, that a careful, ballot-by-ballot examination was perfectly appropriate to ensure democracy and voters had their say. That Coleman worked, for so many months, to raise frivolous objections to stall a Dem fillibuster majority for so long was on him, not on the voters or the electoral system.

[AnnfromCA]

We won't know until the absentee votes are counted, but Owens has not yet been certified by the state. If the actual count favors Hoffman, Owens would have to step down.

[Brad Friedman - Huffpost Blogger]

According to whose law, Ann? Certainly not the Republicans or their interpretation of the Constitution. Did you read the actual article above?

[MuchMadness]

The Republicans don't exist any more. The Democrats are in charge. Get busy, Democrats. Quit making excuses and just muscle through some good changes to benefit the nation. That's what we elected you to do. Majority rules.

[ThinkCreeps]

The near-infallible Ann metronome always beats wrong: if it says the answer is white, then black must be correct.

[TheHandyman]

Ann just is so much smarter and knows so much more than anyone else that she just has to be right, doncha know, wink, wink!

[Talossa]

America's laws on absentee ballots are idiotic. In Canada, absentee ballots are allowed -- but they must be received by the close of the polls on election night. When the election ends is when the election ends. Late ballots are thrown out. If you're going to vote absentee, you just have to make arrangements for your ballots to be there the same time as everybody else's. As far as I'm concerned that is the only way to run an election.

[MuchMadness]

As an American, I completely agree that a lot of things about U.S. election laws are ridiculous. And a lot of American citizens seem to have idealistic views but not a lick of common sense.

[Talossa]

The system we have now (Florida 2000, anyone?) is just an invitation to corruption. You can sit back, watch which way the election is going after the polls close, and then decide whether you have to stuff the ballot boxes or not.

[soisay]

The delay in ballots is often for service members, in difficult locations overseas or aboard ship. While I agree with the election day receipt deadline for regular absentees, it seems extremely unfair to disenfranchise our patriots. At the same time, there were rumors of ballots in Bush-Gore being filled out and post-dated at sea. There must be a solution with service ballot collections, possibly two deadlines (just like "the last day to mail Christmas packages") and expedited deliveries. We are after all fighting for Democracy and there must be empty planes flying back that could carry specially marked "rush" ballot bags

[roald]

Problem there is with ballots coming from soldiers whose mail is unreliable. Need to get that worked out first.

[MuchMadness]

Can't the law be set up to discourage absentee ballots unless the absences are truly unavoidable? And can't the laws be set up to guarantee that any absentee or other mail-in votes arrive in time to be counted prior to election day? Maybe we also need to make it a little bit harder to register to vote so that poorly informed voters will not take the time to register. Go back to the old rules. Our elections are getting ridiculous. Recounts and delays should be very rare. Nearly all elections should be decided by the end of the night on election night. In the interest of expanding voting participation, we have undermined confidence in the credibility of our elections. And are we getting better government? No, we are getting government suited to a not-too-smart electorate.

[Brad Friedman - Huffpost Blogger]

Wow. Don't even know where to start with this one. But I'll try...

"we also need to make it a little bit harder to register to vote so that poorly informed voters will not take the time to register."

Great idea! How about literacy tests? They used to work great in the old South!...Yeesh. I'd not be in favor of such a proposal even if it prevented YOU from voting..

"Go back to the old rules. Our elections are getting ridiculous."

Which "old rules"? The ones where African-Americans were denied the vote? Where women were denied the vote? Our elections may be getting ridiculous, but it's not the voters fault. It may, however, be folks like yourself, uninformed enough to make some of the comments you've made here. Consider yourself lucky we haven't made it "a little bit harder to register to vote so that poorly informed voters will not take the time to register."

"Nearly all elections should be decided by the end of the night on election night."

They likely would be if we hand-counted publicly and transparently at the polls, with the entire citizenry watching, video-taping, etc. Our handy-dandy (often failing, always un-overseeable) e-tabulators have done our supposed self-governance no favors. That said, you want your election results fast or accurate? Given the choice between the two, though it may be a false choice, I'd take the latter. You?

[Brad Friedman - Huffpost Blogger]

(Con't from previous)

"In the interest of expanding voting participation, we have undermined confidence in the credibility of our elections."

No clue how you've gotten there. While I'm no fan of vote by mail, as it's the easiest way to defraud the system (among other reasons), there are often very legitimate reasons for voters to vote by mail/absentee. In the case of NY, the ballots still coming in are from oversees military who, though their ballots must be post-marked by Election Day, as I understand it, have 13 days following the elections for their ballots to show up.

So why exactly are you arguing to disenfranchise our troops who are busy fighting to help protect YOUR democracy, even as you seem prepared to call for undermining it? Do you hate the troops? The Constitution? Or just democracy in general?

[S1m0n]

Elections with a margin as large as 3,000 votes out of 140 thousand or so are very rarely overturned in recounts unless there has been very significant amounts of fraud. Yes, it's mathematically possible, given 10k ballots still uncounted, but it's very unlikely. The votes already counted amount to a sample size of over 93%, which is almost as close to a sure thing as statistics will allow.

[roald]

MN Senate election in 2008.

[nomobull]

my guess is the absentee ballots probably favor the forced out candidate.

[nomobull]

and the gop must believe or know this to be true otherwise why so silent.

[Doofus]

From the Syracuse Post-Standard article:

' Under a new law in New York that extended deadlines, military and overseas ballots received by this coming Monday (and postmarked by Nov. 2) will be counted. Standard absentee ballots had to be returned this past Monday.

(John Conklin, communications director for the state Board of Elections) said the state sent a letter to the House Clerk last week explaining that no winner had been determined in the 23rd District, and therefore the state had not certified the election. But the letter noted that Owens still led by about 3,000 votes, and that the special election was not contested -- two factors that legally allowed House Speaker Nancy Pelosi to swear in Owens on Friday.

"We sent a letter to the clerk laying out the totals," Conklin said. "The key is that Hoffman conceded, which means the race is not contested. However, all ballots will be counted, and if the result changes, Owens will have to be removed. ' ...

[Brad Friedman - Huffpost Blogger]

"Have to be removed" by whom? According to the precedent set by the Republicans in 2006, NY doesn't have the right to remove anybody at this point. It's up to the Congress now that Owens has been sworn in -- the Democratic-majority Congress -- not the state of NY, its courts or its voters. Unfortunately.

[saveal]

A perfect system can, run by fallible people, fail, but none the less, we live in a politically correct world where parity is of most importance.. The minority feels they can not participate, being dictated to by the majority. The end either way is that the rules are changed, or enforced in such away to support the ideas of the one in control. Both sides are guilty, The real losers are the American people. If you change the rules every 4 years, well I think its disgraceful.

[Doofus]

'Removed by whom?' That's a good question. It's not going to be up to
the NYS Board of Elections, that's for sure. Rather it'd be up to the House
of Reps itself, so it probably won't happen. It has been said that this election
was more about what George Pataki will be doing if/when he runs for the Senate
next year. Look for the same strategery: a Demo vs a Repo vs a Conservative.

[jade7243]

"But the legal maneuvering and judicial precedent that the then-Republican-led House pulled in the Summer of 2006, [...] should ensure that Hoffman can no longer, legally, take possession of the House seat via any challenge in New York -- even if he's eventually found to have received more votes than Owens!..."
===============
Wait... we're the Democrats... and the "democrats" ....

Do we really want to resort to the "legal manuevering" or other hocus-pocus trickery used by Republicans to "elect" congressmen and women (and some would say a President)? Can we demand "that every vote be counted," if we resort to means that don't count every vote? If we participate in games that disenfranchise voters in elections, what else are we willing to do?