MONTGOMERY COUNTY — A judge in Montgomery County has signed off on a process by which tens-of-thousands of absentee ballots — votes that will ultimately determine the outcome of the election — are to be counted in the race for the state’s 46th Senate District, after the top two vote-getters recently filed competing lawsuits over the matter. 

But it appears that, even after every vote is counted, there isn’t likely to be an outcome all that different from Nov. 3.

Justice Rebecca A. Slezak’s Nov. 8 decision ordered that the ballot-canvass process start in Albany County on Nov. 18, in Greene County on Nov. 12, in Montgomery County on Nov. 12 at noon, in Schenectady County on Nov. 12 at noon, and in Ulster County on Nov. 18 at noon.

Based on early and Election Day voting, Richard Amedure, a GOP-backed Conservative, is sitting the catbird seat, having turned back the challenge so far from his Democratic rival, Michelle Hinchey, to keep the 46th state Senate District seat Republican. 

Both candidates made their first run for elected office to represent the sprawling district for which the incumbent Republican, George Amedore, chose not to seek re-election. A Green Party candidate and a write-in candidate garnered fewer than 1 percent of the votes.

Hinchey of Ulster County, who worked for a decade in media relations, had nearly five times the funding of Amedure, a retired State Trooper who lives in Rensselaerville. Enrollment in the district favors Democrats.

With over 130,000 early and Election Day ballots cast, Amedure has a 6.26-point lead over Hinchey, 51.19 percent to 44.93 percent, or 66,784 votes to 58,613, according to unofficial results from the state’s board of elections. 

But there are still as many as 26,000 absentee ballots waiting to be counted.

Neither the Hinchey nor Amedure campaigns responded to requests for comment.

The lawsuits

Citing everything from the “notoriously insecure” voting machines that are “prone to hacking,” to what he claims are local boards of elections attempts to shield themselves from a candidate’s right to watch the after-election vote-count process, Amedure asked the court on Nov. 2, the day before Election Day, to place tens-of-thousands of yet-to-be opened and uncounted mail-in ballots under lock and key until such time that Amedure’s preferred vote-counting method could be instituted. 

The state’s board elections, responding on its own behalf and that of the five county boards involved in the vote count — Albany, Greene, Montgomery, Schenectady, and Ulster  — said that Amedure’s suit to halt the count of absentee ballots is made up of “entirely cookie-cutter allegations with no specificity that would warrant deviation,” matching six other “nearly identical” claims from six other Republican candidates.

On Nov. 4, the day after Election Day, Hinchey filed her own petition, seeking to ensure that every ballot yet to be tallied on Nov. 3 gets counted.

New York State Election Law says that local boards of elections can begin to count absentee ballots three days after Election Day, Nov. 6; local elections boards have until Nov. 10 to receive those ballots as long as they were postmarked by Nov. 3.

Amedure asked the court to impound the absentee ballots — as well as any other election materials, a list that ran to nearly 20 in the court filing, including the machines used to tally the votes — because, had those votes been on-site on Election Day, they could have been counted, depriving Amedure of his “ability to inspect” the ballots, “and where appropriate, object” to the vote being counted, he argued in court documents. 

“Absent the immediate intervention of this Court, prior to the close of the polls, the said ballots will be cast and canvassed immediately upon the close of the polls compromising the rights of [Amedure], who has no right or opportunity to inspect the documents supporting those ballots prior to the election,” Amedure’s court papers state.

Hinchey’s court filing says that, over the past two years, the state has made significant changes to its election laws, which have affected the absentee and affidavit balloting processes. She claimed in her Nov. 4 filing that an August executive order from Governor Andrew Cuomo allowed for the issuance of a “historic volume of Paper Ballots,” and stated that the total number of absentee voter paper ballots won’t be known to each local board of election until Nov. 10, as is prescribed by state law. 

Starting this year, the state relaxed its rules about errors made when filling out affidavit or absentee ballots and the completeness of the information provided by the voters filling out the ballots, Hinchey’s papers state.

Affidavit ballots, also known as provisional ballots, are used when a citizen arrives to vote at a polling place but poll workers cannot verify information about the voter.

Due to the coronavirus pandemic, the state made absentee ballots available to anyone who wanted one, which wasn’t formerly the case; specific reasons had been required.

Additionally, the legislature passed and the governor signed into law legislation that required local boards of election to notify absentee voters if there are “certain deficiencies” with their ballots and to provide the voter the opportunity to “cure such defects.”

Hinchey filed her petition “in order to preserve [her] rights under the Election Law,” her court papers state, which would allow the court to supervise the canvass of machine-scanned, “relevant unopened,” “non-scanned,” and “improperly opened” ballots. 

This is the first election cycle in New York State’s history where vote-by-mail is an option for anyone who wants it, which means residents were more likely to make an error, like having a signature on their ballots that bears little resemblance to the one on file with the state. One study that examined elections in Florida in 2016 and 2018, for example, found that it was nearly three times more likely that a first-time mail-in voter would have his or her ballot tossed. 

Judge’s decision

Slezak’s decision appears to have largely agreed with both Amedure and Hinchey’s petitions, ordering more oversight and ballot security while allowing more opportunity for absentee voters to fix, or “cure,” their ballots so those votes are not tossed out.

Slezak ordered among other things:

— That the local boards of elections cannot open any of the envelopes that contain the absentee and affidavit ballots during canvassing until each campaign has been given the opportunity to object to their opening;

— That the local elections boards hand over to the campaigns electronic copies of their poll books, as well as copies of other documents previously requested by Amedure and Hinchey; 

— That a board of inspectors composed of two local board of elections commissioners, or their deputies, from each of the five counties that make up the 46th Senate District be set up to conduct a canvass of every vote and ballot cast in the election;

— That attorneys for the candidates be admitted “to the place of canvass or recanvass” and “be allowed full participation in the administrative proceedings”; 

— That election materials (the list of nearly 20 items that included vote-counting machines, electronic poll books, and the ballots themselves) be kept in a secure storage facility that uses a two-lock system, and that a local board of elections commissioner from each of the major parties have a key “to only one” of the two locks; and 

— That local boards of elections notify voters whose miscast absentee ballots were received before Election Day and who may not have been previously notified of the error, the opportunity to fix their ballots.

A difficult path to victory

Though not impossible, Hinchey’s road to the State Senate relies on absentee voters completely breaking from an Election Day pattern that left Amedure with an 8,171-vote lead.

Assuming Amedure receives every Republican and Conservative mail-in vote, for Hinchey to be declared winner after every vote is counted, her name would have to appear on every single absentee ballot mailed in by a registered Democrat while also appearing on over 61 percent of the remaining non-Independence Party absentee ballots. 

Amedure had the backing of the Independence Party.

In the 46th State Senate District, 33,868 voters had requested a mail-in ballot of which 25,987 had been sent back, according to absentee-voter data from the state's board of elections shared on social media by Nick Resiman of Spectrum News. 

Fifty-one percent of the returned absentee ballots were from registered Democrats or members of the Working Families Party; about 21 percent were from voters enrolled in either the Republican or Conservative parties; approximately 23 percent of ballots had no party affiliation; and about 5 percent of the remaining voters came from a third party — 85 percent of third-party ballots were cast by Independence Party members.

If straight-ticket voting is assumed — split-ticket voting at the state-level across the country hit a new low in 2018, and only twice in the 100 years prior to the 2016 election, had there been fewer split districts, meaning residents voted for the presidential candidate of one party while voting for a United States member Congress from the opposite party — Hinchey would have 71,924 votes (58,613 from Election Day and 13,311 mail-in Democratic and Working Families Party votes) to Amedure’s 73,290 (66,784 Election Day votes and 6,506 absentee votes from Republicans, Conservatives, and Independence Party members).  

That leaves 6,116 remaining absentee ballots from either unaffiliated or third-party voters, out of which Hinchey would first have to erase a 1,366-vote deficit, and then win half plus one (2,376) of the remaining 4,750 ballots to score a one-vote win over Amedure. 

Making Hinchey’s path to victory more difficult is Amedure’s win up and down the senate district on Election Day; he won a plurality of votes in four of five counties — Albany, Greene, Montgomery, and Schenectady.

In two of those counties, Greene and Montgomery, there are more Republicans than Democrats; while in Albany County, the reverse is true; and in Schenectady, right- and left-leaning party affiliation in the county is nearly equal.

Only in Ulster County, where Hinchey lives, did she best Amedure.

His win on Election Day at least suggests that Amedure had a modicum of broader appeal than Hinchey did with voters. There were 130,455 votes counted on Nov. 3, with Amedure receiving 65,066 votes from either the Conservative or Republican line — there are under 61,000 voters enrolled in either of those right-leaning parties in the 46th District.

Hinchey received 58,613 left-leaning votes on Election Day, either from Democrats or Working Families Party members; there are over 74,000 voters enrolled in the two left-leaning parties in the senate district. 

In the parts of Albany County that lie within the 46th — where the district includes all or parts of Guilderland, New Scotland, Coeymans, and the Hilltowns of Berne, Knox, Rensselaerville, and Westerlo — Amedure received 15,190 votes, to Hinchey’s 14,173 votes. 

Amedure appears to have won Albany County on Election Day through some combination of turning out the GOP and Conservative vote, having a significant number of unaffiliated-party voters breaking his way, and/or picking off some enrolled Democrats, which is not outside the realm of possibility: The Hilltowns, where there are still many more enrolled Democrats than Republicans, have been trending hard toward the GOP since 2016, when President Donald Trump won the area.

In the portion of Albany County that lies within the 46th State Senate District, there are only 10,252 active Republican and 1,345 Conservatives voters  in the county, totaling 11,597 — yet on Election Day, Amedure received 14,754 votes on either the Republican or Conservative line.

Albany County received a total of 7,639 absentee-ballot requests of which 5,844 had been returned by mail: 3,070 were from Democrats and Working Families Party registrants, 959 were from Republicans and Conservatives, 1,495 requests were from voters without a party affiliation, and the remaining 324 were from smaller third parties. 

As he did in Albany County on Election Day, Amedure appears to have turned out the base while also overperforming along party-enrollment lines in Schenectady County, where he received 11,279 votes to Hinchey’s 7,014.

There are 9,841 active Republican and Conservative voters in the part of Schenectady County that is in the 46th District; 9,514 Democratic and Working Families Party voters; and another 7,372 active voters who are unaffiliated with any party. 

On Nov. 3, Amedure received 10,951 of his votes from either the Republican or Conservative line. Hinchey received 7,014 Democratic and Working Families Party party-line votes on Election Day.

There were 3,924 mail-in ballots requested this election from Schenectady County residents who lived in the 46th District, with 3,331 returned: 1,605 came from Democrats and Working Families Party members; 784 were returned by Republicans and Conservatives; 753 of the ballots returned had no political party; and 189 small-party registrants in the county voted by mail.

Both Green and Montgomery counties are entirely located within the 46th State Senate District, and Amedure won over 62 percent of the vote in each on Election Day.

Greene County had issued 4,708 absentee ballots and received 3,723 back: 1,620 from Democrats and Working Families Party-enrolled residents; 1,100 from GOP and Conservative voters; 787 from unaffiliated-party members; and 216 from third-party voters.

While the Montgomery Board of Elections issued 3,943 absentee ballots of which 2,931 had been sent back: 1,438 were from Democrats/Working Families Party; 907 came from Republicans and Conservatives; 415 had no party affiliation; and 171 ballots were returned by other party enrollees. 

Ulster County, where Hinchey lives, was Amdedure’s only poor showing; he received 15,947 votes compared to 24,786 votes garnered by Hinchey.

The Ulster County Board of Elections had received 13,654 ballot applications and 10,158 were returned: 5,632 from Democrats and Working Families Party members; 1,623 from Republicans and Conservatives; 2,460 from unaffiliated-party voters; and 443 ballots came from small-party members.