Facts about how N.Y. counts ballots

We have reached peak conspiracy theory in the Queens district attorney race. People are saying that votes are being “thrown away.” There are allegations of the election being “stolen.” And all of this has happened before counting the ballots is done, or the election certified.

There are some persistent myths at play here, in part because the New York election law is a patchwork of arcane rules, and partly because the opacity of the internal workings of the Board of Elections gives rise to conspiracy theories. Let’s dispel them.

Myth number 1: Absentee ballots are only counted if it’s a close race. Absentee ballots are always counted. This is the reason that election-night results — whatever the margin — are “uncertified” until the following week, allowing time for absentee ballots to be received by mail. The BoE counts them in all races, but we don’t pay attention or cover it unless the race is close.

There is a process to make sure that they are actually from enrolled, registered voters who have not also voted at the polls, and every valid absentee ballot is always added to the vote total.

Historically, most absentee ballots are valid votes.

Myth number 2: Votes for one candidate are being discarded. At least one prominent activist is saying that unnamed officials have said privately that affidavit votes for one of the candidates have been “thrown out.” This cannot be true. (Affidavit votes are ballots filled out on election day by people whose names could not be found on the voter rolls.)

The confusion that leads to this belief comes first from the way different people use the phrase “thrown out,” giving the false impression that votes are actually discarded. Election insiders use the phrase “thrown out” when they mean that a ballot — still in its envelope, with the vote unknown — has been set aside as invalid for a technical reason. No ballots are ever actually destroyed.

There is no way to know what the vote inside the ballot envelope is, just guesses based on neighborhood or other demographics. The technical reasons for declaring an affidavit ballot invalid run from the obvious (like the person who cast it not being a registered voter, not being enrolled in the party having the primary or not signing the ballot) to the pretty silly (like missing insignificant information on the outer envelope). Historically, the majority of affidavit ballots are not valid votes.

Myth number 3: The Board of Elections doesn’t follow rules. The of commissioners live or archived on their website, and you will see their perhaps too-strong love for rules and precedent.

There are some election law reforms that have already been passed into law this year, some more awaiting the signature of Gov. Cuomo, and many more for which we can advocate. New York election law is a patchwork of old and new laws. It needs a top-to-bottom rewrite, instituting modern reforms, acknowledging that people interact with politics and voting differently today, and making it internally consistent, with sections that have been modified or struck by courts but still exist as relics in the statute removed or updated to reflect the decisions.

In the meantime, it is irresponsible and undemocratic to attack the process without understanding what that process actually is.

Steiner is a New York election lawyer, and a former chair of the New York City Bar election law committee.