Judge to Rule on Certification of Undecided US House Race

A judge said Friday he will rule shortly on whether New York can certify the results of the nation's last undecided congressional race.

Former Rep. Claudia Tenney, a central New York Republican, held a 122-vote lead over Rep. Anthony Brindisi as of Monday, according to unofficial vote totals from both campaigns. Brindisi was the Democrat who ousted Tenney from office in 2018.

Tenney has maintained a small lead even as months of litigation revealed problems with ballots that either weren’t counted properly or were improperly rejected. Tallies have shifted as county election officials counted a flood of absentee ballots and courts weighed in on which challenged ballots could be counted.

And more than three months after Election Day, the formal tally is unknown. Judge Scott DelConte has paused the certification of results in one county, Oneida, while he weighs Brindisi's request to hold up certification of election results as litigation continues.

Brindisi has legal challenges pending with a state appeals court. His lawyer said Friday that Tenney's 122-vote lead may be smaller, at around 100.

And Brindisi also asked DelConte to decide whether to hold an audit of election results, which could trigger a formal recount.

Brindisi argues that once the election gets certified and Tenney is sworn in, only Congress has the power to remove her, not the courts.

“Certification is not advisory,” Brindisi’s lawyer Bruce Spiva said. “That’s the legal mechanism by which the state tells the House the results of the election, that it was a valid election. And the only mechanism within the House to challenge that is through a House contest. And once the person is seated, anything else that the courts would do, the state courts would do, is merely advisory.”

Tenney’s lawyers argued the judge should allow the courts process to continue while the House of Representatives independently considers who to seat.

Tenney's team pointed to a state, not federal, case in which New York ended up revising certified election results after a state candidate was seated.

In 2013, a New York state court ordered a candidate be declared the winner, and the state board of elections then issued a certificate of election for that candidate. The candidate took his oath, but the courts later issued a revised certificate of election in favor of the challenger, who was then seated.

“A certification of election in this case does not mean you have a right to be seated,” Tenney’s lawyer Paul DerOhannesian said. “It means you have the right to ask to be seated. And the House of Representatives can do what it wants with that certificate.”

The judge said Friday that Brindisi has to prove he would be “irreparably harmed” if election results were certified. But, he said, it appears Brindisi has other options to challenge the results even if the New York certifies the results.

“You said, ‘Judge, stop the public bodies from doing their job,’” DelConte said. “That’s what you’ve asked me to do. I’m no longer ruling on ballots, I'm no longer participating in this election, but I’ve been asked to stop this election ... and that’s a very very high burden. You must show irreparable harm.”