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Reed Files Motion To Preserve Ballots In Race

Tom Reed

U.S. Rep. Tom Reed was taking no chances with Tuesday’s election, asking the state Supreme Court in Steuben County on Monday to preserve election materials related to the vote in case his campaign chose to challenge ballots.

On Monday, Reed filed a motion that affects all of the counties in the 23rd Congressional District — Chautauqua, Cattaraugus, Allegany, Chemung, Steuben, Schuyler, Seneca, Ontario, Yates, Tioga and Tompkins counties — as well as Andrew Kolstee, a Chautauqua County native running for the 23rd Congressional seat on the Libertarian Party line, and Tracy Mitrano, Reed’s challenger on the Democratic and Working Families party lines.

It doesn’t appear a decision was made in the case before Tuesday’s election.

Reed is asking a judge to preserve unopened and/or non-scanned ballots — including absentee ballots, special ballots and applications for ballots, affadavit ballots and envelopes containing the ballots, special ballots, military ballots, machine breakdown reports, mechanic or custodian logs, election day affidavits, election day court orders, poll books, ballot stubs, spoiled ballots, voided or defective ballots, unused ballots and all copies of close of poll reports, and all printed and electronic records and vote tallies related to Tuesday’s election.

“Due to the COVID-19 related state of emergency and changes to the laws of the state of New York, this election already has an unprecedented number of paper (absentee) ballots being cast, many of which are being sent via the mail (which will be received after the date of the election). Due to the changes in the laws of the state of New York there may be an increase in the number of affidavit ballots and requirement for additional layers of research and review of same. … Boards of Elections may be planning to alter canvassing procedures so as to reduce or eliminate poll watchers from having meaningful and effective access to election materials and ballots so they might make objections to absentee, military, special, affidavit or federal ballots,” Reed’s lawyer, Joseph T. Burns, wrote in his court filing.

Reed’s lawyer wrote that the abbreviation of typical canvassing procedures could include eliminating the recording and preservation of objection records, something that could deprive reed and the court of the ability to review actions taken by boards of elections throughout the 23rd Congressional District. The number of early votes and absentee ballots led Reed’s team to believe the race may be close and leave the race being decided by recanvassing of voting machines, the condition and reliability of memory sticks and the canvass of paper ballots.

Among Reed’s concerns were elections boards making errors identifying voters’ signatures on an application, ballot envelop or affidavit. The Reed campaign was also concerned about an “unprecedented” number of absentee and military ballots, particularly making sure that those ballots were properly post-marked and hadn’t had their envelopes burst or opened. Such challenges led campaign officials to believe the canvassing of ballots would take longer than the three-day preservation period required in the state election law.

“Upon information and belief, the facts alleged in the paragraph herinabove, point to the fact that the final results of this election hinges upon the canvass of the various types of paper ballots mentioned herinabove, as well as a review of the canvass of the machine cast ballots, voting machines, ballots, scanners, ‘sticks’ or flash drives (the electronic record of voting similar to USB port devices), the ballot images and ballot stubs, and the audit of the voting machines and possibly a review of the paper ballots contained in said machines.”

Jessica A. Kulpit, an attorney representing Tracy Mitrano, said the suit should be denied because it was not filed early enough for Mitrano to properly respond; because such applications are not routinely signed by courts and are typically dismissed and will only slow the work of elections boards.

“Petitioner’s application is an attempt to deviate from this legislatively prescribed process for the Board of Elections,” Kulpit wrote. “The application is premature and prejudicial to the parties and the voters. The petition filed is void of specific need for the emergency relief to be granted. It is generally overbroad and fails to demonstrate the necessity for the extreme remedy requested. A general assertion that an election may be close is not enough.”

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