ALBANY, N.Y. — The embattled Democratic primary for Queens district attorney, now enmeshed in a lengthy recount and possibly lengthier court battle, could have another nexus, 150 miles away in the state Capitol.
That is where a bill that could help requalify dozens of invalidated ballots awaits Gov. Andrew Cuomo’s signature. The measure is intended to make it more difficult to invalidate affidavit ballots, as long as the voter “substantially complied” with election law.
If signed, it could allow a surge of new votes many times greater than the 16-vote margin that now separates Melinda Katz, the establishment favorite, from Tiffany Cabán, the insurgent newcomer. And by extension, it could reshape the future of criminal justice in a borough of more than 2 million people.
Though state lawmakers passed the bill last month, they have not sent it to the governor, and Cuomo, who endorsed Katz in the primary contest, has not indicated whether he will sign it.
Supporters of Cabán, a former public defender and democratic socialist, say the bill’s delay is evidence of the political establishment conspiring to quash her candidacy. They believe that many of the affidavit ballots — given to those who show up to the polls but whose names do not appear in the books of registered voters — were cast for Cabán.
Some have also suggested that not counting these votes amounts to voter disenfranchisement.
“It’s about us doing our part to save our democracy,” Assemblyman Ron Kim, a Democrat who represents parts of northern Queens, said on Twitter. If the bill was not signed, he said, “we will all be complicit in suppressing voters.”
Those who backed Katz, the Queens borough president, say the unsigned bill is going through the normal legislative process. More than 800 bills that passed this session — including more than two dozen dealing with aspects of election law — remain unsigned.
“They’re trying to say there’s something not just about the process,” Rep. Gregory Meeks, chairman of the Queens County Democratic Party, said Tuesday at a rally on behalf of Katz. “The process is fair. Everybody knows the rules. Everybody has to play by the rules.”
Nonetheless, the stasis stands in contrast to the pro-reform platform that helped fuel a so-called blue wave for Democrats in November. The newly Democratic-led state Legislature’s first act in January was to pass sweeping changes intended to make it easier for New Yorkers to vote, and Cuomo had made voting reform one of his legislative priorities this year.
The bill in question concerns affidavit ballots, cast by voters who do not appear in the rolls. They are allowed to vote anyway if they sign an affidavit affirming that they are eligible. The Board of Elections later verifies those claims, setting aside any ballots that it deems invalid.
A ballot can be invalidated for a number of reasons, from the obvious — not being registered — to the more technical, such as leaving parts of the affidavit incomplete.
The bill, which passed almost unanimously in the Assembly and by a comfortable margin in the Senate, would allow affidavit ballots to be counted even if the affidavit was not properly filled out, as long as the voter was eligible and had “substantially complied” with election law. Leaving off one’s former address, for example, would no longer be a “fatal defect.”
More than 2,300 of the roughly 2,800 affidavit ballots cast in the primary election last month were invalidated. Of those, about 100 were disqualified for technical errors in the affidavit, such as a registered Democrat not writing the word “Democrat” in a space for party affiliation.
But the bill is but one of several legal questions swirling over the Queens race and its much-contested affidavit ballots. Separately, lawyers for both campaigns have filed lawsuits asking a judge to review the ballots. Those suits have been shelved until after the Board of Elections recount.
In light of those pending battles, there is some debate over just how much the bill would or should affect the current results.
Several officials in Albany said they were wary of introducing the law in the middle of the already tense recount process. They also worried about upsetting other races around the state, where election officials may have recently certified close results.
Michael Whyland, a spokesman for Carl Heastie, the Assembly speaker, said the pending court cases removed the urgency from the bill.
“Given that the judge has said he will be reviewing ballot issues at the conclusion of the recount,” Whyland said Wednesday, “this clearly gives the Legislature enough time to continue to go through its normal legislative review process.”
Typically, the Legislature must send the bill to Cuomo’s desk before he can sign it. Heastie, who endorsed Katz, has not sent the bill.
Cuomo, speaking to reporters Tuesday, also called for delay.
It would be “absurd” to apply the law retroactively, the governor said, adding that he was mulling it as a part of a larger assortment of election-reform bills that passed the Legislature this year.
“You would have to review all of them as an entirety,” Cuomo said. “Because are the bills compatible, do some bills complement others, do some contradict others?”
Asked about the timing for such a review, Cuomo did not offer much hope for Cabán’s supporters, calling it “a big undertaking,” saying the only deadline he was concerned about was November’s elections.
Sarah Steiner, a New York City election lawyer who is not working for either candidate, said legal precedent from prior court cases suggests that a judge reviewing the invalidated ballots would permit them, even without the law. A law would merely make revalidation more certain.
Still, she called the desire to wait understandable.
“To do it in the middle of a vote count — I think it’s confusing, and it can lead to all sorts of litigation,” she said. “And if there’s anything we don’t need in this race, it’s more confusion.”
Indeed, some Democratic leaders have argued against the bill’s enactment not only on legal grounds but also in terms of fairness, claiming that to allow the invalidated ballots after the election would amount to retroactively changing the rules.
They have suggested that Cabán’s supporters cherry-picked this bill to agitate on, when so many other bills also remain unsigned.
“You can’t go into a baseball game and say, the day of the game, ‘We want to change the rules right now because it’s to our favor,’ ” Meeks said.
Assemblyman Kevin Cahill, D-Hudson Valley, who sponsored the measure in Albany’s lower chamber, said he doubted the bill would be applied retroactively, though he stressed that “the objective is to have legitimate voters have the right to vote.”
This article originally appeared in The New York Times.