Send Lawyers, Guns and Money: New York’s 23rd Congressional Race May Not Be Over

On this past election night, I was pleasantly surprised to read that Doug Hoffman, the conservative candidate vying to win the special election in New York’s 23^rd congressional district, had quickly and graciously conceded the race when results seem to indicate that he would lose to the Democrat Bill Owens.   Although the race was close, and only 93% or so of the vote was in at the time, Hoffman trailed by some 5,335 votes.  Moreover, it appeared he had underperformed in districts, such as Oswego county, where he hoped to roll up a big margin. Evidently this convinced him to concede the race even though he was within 4% of Owens with several thousand votes yet to be counted.

By not contesting the results, Hoffman allowed Nancy Pelosi to swear Owens into office in time to vote in favor of the Democratic health care plan – a not insignificant event since the vote was relatively close in the House, with the legislation passing by a scant five votes.  Owens took office even though the election results had not yet been certified and with most of the absentee ballots, of which some 10,000 had been mailed out, yet to be counted.

Now, however, it appears (courtesy of Pollster.com) that Hoffman’s concession may have been premature.  It turns out that in the flurry of recording incoming results, the vote totals coming in from some of the precincts were incorrectly reported.  After reexamining the totals, election counters discovered a 1,200 vote error in Hoffman’s favor in Oswego County and smaller errors in other precincts.  Owens’ lead has now dropped, with all precincts reporting, to 3,176, according to a Watertown Daily Times article (link courtesy of Pollster.com).  However, there are still the bulk of the absentee ballots to be counted.  Under New York law, military and overseas ballots received by November 16^th (but postmarked by Nov. 2) are eligible to be counted. (Standard absentee ballots had to be returned by Nov. 8 if I understand the election law correctly).  Interestingly, most of these absentee ballots were likely filled out before Republican Dede Scozzafava dropped out of the race and told her supporters to vote for Owens.  So most experts believe the absentee ballots will favor Hoffman.  However, they don’t think that will be enough to swing the race his way, since the best estimate is that there are “at least 5,400 absentee ballots” left to be counted, a process that begins Tuesday.  That makes it appear almost impossible for Hoffman to make up a 3,176 vote deficit, given the breakdown of the vote so far.  He would have to vastly outperform his results to date to win.

Here are the most up-to-date unofficial results from the state board of elections, as reported in the Watertown Daily Times.

That’s a hefty deficit in the context of the remaining absentee ballots. But Hoffman may not have to beat Owens when all the votes are in.  Instead, all he needs to do is to come close enough to justify a recount, which – given the heightened national interest in the election – would undoubtedly lead both national parties to bring in the big guns (not to mention lawyers and money) to engage in still another protracted recount.  Remember, this race took on symbolic significance in large part because the media viewed it as a referendum on Obama as well as an indication of the relative power of conservative versus moderate elements in the Republican party.  The Vice President visited the district, and both parties poured money into the race, with the Republican contributions being split between Hoffman and Scozzafava.

But does the race really matter beyond the media hype?  Isn’t this just one seat out of 435?  Consider this: the House presumably has at least one more significant vote on health care coming up, when it debates the final legislation that will come out of the House-Senate conference.  It is not inconceivable that this conference bill will be even more controversial – as would be the case if still contained the antiabortion language and was shorn of the public option. Democrats may see their left wing lining up with Republicans in opposition, in which case every single vote will matter.  If Owens is engaged in a lengthy recount, his election may be invalidated, pending official certification by the New York election officials, costing the Democrats a House vote.  Or – and this is more of a long shot – Hoffman may be declared the winner.  In the event of a close House vote, this could be the difference.

Unlikely?  Yes.  Impossible?  No.

Cue Warren Zevon.

Addendum (2:37 pm)  In response to a couple of student emails: No, I don’t know whether, once having been sworn in,  a Representative’s appointment can be “rescinded” during a recount, but before the results are certified. I suspect not, although it certainly raises some sticky ethical issues.  Nor do I know under what circumstances a recount is triggered under New York state law.  I will try to get answers to both very good questions and post them here, but if any of you are election experts, please post what you know in the comments section…