Nassau County's Republican elections commissioner has agreed to count roughly 20,000 affidavit ballots cast in this month's election after raising the prospect last week that ballots where voters did not indicate that they had been displaced by superstorm Sandy might be challenged.
It's unclear if Suffolk County, which also raised concerns about the legality of some 9,000 affidavit ballots, will follow suit.
The recanvassing could potentially affect the final tally of the State Supreme Court race, in which the top six judicial candidates are elected. GOP Judge Peter Skelos is currently in fifth place, 4,209 votes ahead of Democrat Leonard Steinman and 5,721 votes ahead of Democratic Judge Hope Zimmerman, who is in seventh place.
Elections officials must certify the race by Monday.
On Nov. 5 -- the day before the general election -- Gov. Andrew M. Cuomo issued an executive order allowing voters displaced by the storm to cast provisional ballots at polling stations outside their regular district. The order did not specifically require voters to indicate on the affidavit ballots that they had been displaced.
And, while the order instructed poll workers to provide provisional ballots to any voters who certified they are legally registered, it did not limit its scope to storm victims.
GOP election commissioners in both counties suggested last week that the order was unclear and required clarification from the state.
In a Nov. 19 email to state elections officials, Suffolk Republican elections commissioner Wayne Rogers wrote that voters should have their affidavit ballots counted only if they indicated in print that they had been displaced by the storm.
But Robert Brehm, co-executive director of the State Board of Elections, disagreed and wrote a memo Tuesday telling election officials in both counties that the executive order did not require voters to prove storm displacement.
In his memo to both counties' elections commissioners, Brehm wrote that "There is no statutory authority for any board to condition the exercise of the voter's franchise on requirements" not detailed in the executive order.
John Ryan, an attorney who represents Nassau GOP elections commissioner Louis Savinetti, said after studying the issue he agreed that all affidavit ballots must be counted.
"There was a lack of clarity in the executive order," Ryan said. "This was such an unusual circumstance."
Nassau Democratic Board of Elections commissioner William Biamonte said Republicans made the right call. "Any attempt to disenfranchise voters was an unwise choice that was quickly corrected," he said.
Rogers did not return repeated calls for comment this week.
Suffolk Democratic Elections Commissioner Anita Katz said, "The governor's goal was to allow voters displaced by the storm to participate in the election and I agree these ballots should be counted."
Cuomo's office did not return several calls for comment on the executive order.