In this proceeding brought under Articles 7, 8, 9, 10, 11 and 16 of the Election Law and CPLR 3001, petitioner James E. Davis, Jr. seeks an order, inter alia, directing that a new Democratic primary election be conducted for the office of Member of the City of Albany Common Council, Ward 3. Davis alleges in his petition that following the primary election conducted on June 24, 2025, respondent Rachel Bledi, Republican Commissioner of the Albany County Board of Elections ("Board" or "BOE") determined that four affidavit ballots should not be counted because the individuals who completed these ballots had already voted via absentee ballot ^[FN1] (Petition ["Pet"] ¶ 14). Nevertheless, respondent Democratic Commissioner ^[FN2] Alison McLean Lane "canvassed the aforementioned four defective ballots with the other 691 ballots" (id. ¶ 17).

The petition further asserts that McLean Lane then "unilaterally intermingled" these ballots into the count, so that there was no way to determine who was the recipient of these improper votes (id. ¶¶ 20, 23). Since the putative winner in the primary contest, respondent Arthur Lumpkin, received either 329 or 330 votes ^[FN3] , and Mr. Davis received 326 votes, petitioner maintains that these four wrongly counted votes could well have made the difference in the election, and only a re-vote can determine the proper outcome.^[FN4]

Commissioners McLean Lane and Bledi each filed answers to the petition.^[FN5] In her answer, Ms. McLean Lane acknowledged that "the four affidavit ballots were improperly canvassed" but denied that this was her unilateral act, and contended that the canvassing and vote tally "can be reconstructed" (Answer by Respondent Alison McLean Lane ¶ 5). For her part, Ms. Bledi agreed with petitioner that these four affidavit ballots "should not have been counted or cast" (Verified Answer of Rachel Bledi ¶ 7). She further echoed petitioner's charge that "Commissioner McLean Lane did not meet or consult with Respondent Bledi to canvass the ballots nor make a ruling on the aforementioned four affidavit ballots" (id. ¶ 8).

A hearing was conducted on the petition on July 22 and 24. At the outset of the proceedings, all parties conceded that four affidavit ballots were wrongly counted since the voters who filled them out had already voted absentee. Counsel for McLean Lane asserted, however, that it would have been impossible for Davis to have prevailed in Ward 3 even had the improper affidavit ballots not been counted. Specifically, he noted that all four such ballots were from Electoral District ("ED") 4 in Ward 3, where eight affidavit ballots were submitted in total (out of a total of ten across the entire election). Respondents could identify all of these eight ballots, since the affidavit ballots were kept segregated, and the Ward and Electoral District were marked thereon. These eight ballots resulted in three votes for Lumpkin, two votes for Davis and three "undervotes" — that is, they were ballots on which no vote was made for the Common Council election. Although counsel conceded that there was no way to determine which of these eight ballots were the ones wrongly counted, in light of the overall vote count for the affidavit ballots, at most this error could have added three additional votes to Lumpkin's total.

In addition, McLean Lane's counsel asserted that the proper count of the votes received by candidate Lumpkin was 330, not 329 as had been set forth in the count certified to the State BOE. As a result, even if it were presumed that Lumpkin wrongly gained three votes from the improperly counted ballot, he would still have received 327 properly cast votes, and thus he would have prevailed in any case. In short, it was the position of counsel for McLean Lane that it would have been impossible for Davis to have won even in the best case scenario for him.

To flesh out these claims, testimony was given on July 24 by Commissioners Mclean Lane and Bledi, and by Marcy Graziano, a member of the Republican Albany County BOE staff who handles information technology.

Ms. McLean Lane gave the following account in regard to the affidavit ballots at issue: Those ballots were taken from the polling station, brought to the BOE, and placed under lock and key. The ballots, which were contained in sealed envelopes, were then reviewed by her counterpart Ms. Bledi to determine whether the voter had previously voted absentee. The envelopes were then placed on her desk, and they were opened on July 1, in the presence of Bledi, the Democratic deputy commissioner and another Republican employee. They were then brought to the scanning room and scanned, after which they were placed in a manilla envelope marked as affidavit ballots. Although four of the ballot affidavits — introduced into evidence as [*2]Exhibits 10 through 13 — bore a "do not count" notation made by Bledi, the corresponding ballots, themselves, were scanned in with the rest of the ballots. In short, in McLean Lane's account the ballots were erroneously scanned without first checking them for Bledi's ruling, but this was an mistake for which a number of individuals from both parties were present, and which they all failed to prevent.

McLean Lane stated that it is possible to identify the eight affidavit ballots cast in Ward 3, ED 4 and these ballots were received into evidence.^[FN6] They confirm the count given by her counsel as to the votes cast by these ballots: three for Lumpkin, two for Davis and three with no vote for Common Council (Exs 2-9).

McLean Lane also provided an explanation for why she believed the vote count for Lumpkin should be 330, one more than the certified number. At the table during the canvass of the votes, one of the ballots reviewed had been identified by BOE's system as an "overvote." That is, the voter had made other marks in the space provided to select a Council candidate in addition to filling in Lumpkin's circle. Specifically, the voter had written Lumpkin's name in the space for a write-in vote ^[FN7] (see Ex 19). All present agreed that this should appropriately be counted as a Lumpkin vote, since the extraneous marks clearly reflected that such was the intent of the voter, which the law now makes the touchstone for whether an absentee ballot with extraneous marks should be counted.^[FN8]

Because of how close the vote was, a recount was conducted on July 2, with representatives of both parties at the table. After the recount, the vote was certified to the State BOE as 329-326 in Lumpkin's favor. But subsequent to the certification, an employee realized that the overvote described above had not been attributed to Lumpkin as it should have been. As a result, the bipartisan group that was present ^[FN9] decided that the certification was erroneous, and Lumpkin's vote count should have been 330. This was noted on the tally sheet and the unofficial tally on the website was amended accordingly. But no members of the public or pollwatchers were there to observe during this process as had been the case at the original canvass and re-canvass, and no step has been taken to amend the original certification.

For her part, Commissioner Bledi gave the following account in her testimony and in an affidavit introduced into evidence without objection (Exhibit 1): Either she or her deputy [*3]reviewed all the affidavit ballots on June 27, in accordance with the statutory schedule (see Bledi Affidavit ¶¶ 7-8; see Election Law § 9-209[7][a][affidavit ballots must be reviewed by the County BOE within four business days of the election]). She personally reviewed the envelopes and voting history for the voters on Exhibits 10 through 13 (the four duplicative affidavit ballots), and determined they should not be counted because they had already voted absentee. She therefore wrote DNC (for "Do Not Count") on each of these envelopes, and handed them to David Cady, the Deputy Democratic BOE Commissioner.^[FN10] She characterized this number of voided affidavit ballots in the primary as "quite unusual."

A bipartisan team was subsequently assigned to scan in the ballots. But the "DNC" affidavit ballots had not yet been segregated, since they had never been reviewed by the Democratic Commissioner. Thus, on July 1, the ballot envelopes were opened and scanned before a bipartisan group including Ms. Bledi, who testified that she was unaware that these included those she had previously marked "DNC" (see Bledi Aff ¶ 14).

Then, following a manual recount on July 2, the Commissioners agreed Lumpkin had won by a vote of 329-326. After concerns were expressed about the count by Davis's counsel, the absentee ballots were double-checked, and the count was then certified to the State BOE.

A couple of hours later, however, Bledi was made aware by Cady that there was a problem, as all the affidavit ballots had been scanned and included in the count despite Bledi's finding that four of them should not have been. To address this, the staff did a general review and discovered in addition to the four wrongly counted affidavit ballots, that a ballot that had previously been counted as an overvote should have been counted for Lumpkin.

In regard to this latter ballot, Bledi testified that she had not been part of that decision. But she had been told — along the lines of McLean Lane's testimony — that after the Board's machines read a ballot (introduced into evidence as Exhibit 19) as an overvote, it was recorded as such despite a bipartisan determination that the ballot should be counted for Lumpkin. Bledi said she was shown the ballot, but did not know the basis by which the staff determined that this ballot was the problematic one. After internal discussions on the matter, the Board decided to change the unofficial count posted on the County BOE's website to 330, to which Bledi agreed. At the hearing, however, she expressed doubt that the Board could alter the certified count in these circumstances without a court order.

The final witness, Ms. Graziano, testified as to how the ballot that should have counted for Lumpkin was identified. She stated that there was a single overvote in Electoral District 3 of Ward 3, and there was only one ballot in the District — introduced into evidence as Exhibit 19 — which had the markings that would have been flagged as such. On that ballot, the voter had written Mr. Lumpkin's name in addition to filling in the bubble for him. As there was no other ballot in this district which would have be read as an overvote, the staff determined that this was the one that was so counted. Since the ballot clearly manifested the voter's intent to vote for [*4]Lumpkin, the staff determined it should have been recorded in his favor, and the fact that it had not been was an error.

Petitioner's central argument in this proceeding is that, in light of the counting of improper affidavit ballots in the vote totals and the mixing of those ballots into the count in such a way that they may no longer be identified, it is now impossible to know the outcome of the primary, and thus a re-vote is necessary.

Such an application may be granted only upon a finding that "there has been such fraud or irregularity as to render impossible a determination as to who rightfully was nominated or elected" (Election Law § 16-102[3]). Before applying that standard here, there are two preliminary matters I must address.

The first is petitioner's assertion (also advanced by counsel for Commissioner Bledi) that the Court cannot consider any arguments about the possible outcome of the election based on what is known about the votes reflected on the eight affidavit ballots, because this would be tantamount to uncounting those votes, and would thereby violate the prohibition that "[i]n no event may a court order a ballot that has been counted to be uncounted" (see Election Law § 9-209[7][k]; Petitioner's Post-Hearing Memorandum at 1). That provision, added to the law in 2021, has been read to divest the Court of jurisdiction to review a ballot once it has been found valid by the Board (see Matter of Amedure v State of New York, 232 AD3d 48, 57 [3d Dept 2024] ["when a central board of canvassers cannot agree, in the final steps of canvassing votes, regarding the validity of a signature, a presumption of validity applies in favor of the voter, the ballot is canvassed and a court may no longer order the ballot uncounted"], affd 43 NY3d 116 [2024]; Shiroff v New York State Board of Elections, 77 Misc 3d 773, 778 [Sup Ct Onondaga County 2022] [by this provision "the Legislature narrowed the jurisdiction of the Courts to allow judicial review only when a ballot is unanimously found invalid"]). But that is not what I am asked to do here. In this case, no party argues that I should strike a vote already counted. Rather, I must decide whether it is impossible to determine the outcome of this primary election in light of the wrongful uploading of absentee ballots, and thereby order a new election. I see nothing in section 9-209(7)(k) which bars me from considering the possible permutations of the affidavit ballots cast in order to determine if petitioner has made the requisite showing.

Petitioner also argues that there is no way of knowing if the ballots introduced into evidence as Exhibits 2 through 9 are, in fact, the eight affidavit ballots cast in ED 4, and he dismisses any effort to consider them as such to be "wild speculation" (Petitioner's Post-Hearing Memorandum at 2). But the identification of these ballots is not based on speculation at all. There was testimony by both Commissioners that the affidavit ballots were kept separately, and Ms. McLean Lane identified these Exhibits as those that had been segregated in this manner. I find this testimony credible, and there is no reason cited by petitioner why such evidence is legally insufficient to authenticate these documents.^[FN11]

On the second issue, however — whether the vote count for Mr. Lumpkin should properly [*5]stand at 329 — I find that petitioner has the stronger argument. The votes in this primary went through a canvass, a re-canvass and a manual recount. All relevant parties had the opportunity to observe the process, and at its end the Commissioners certified the vote total to the State BOE. Such certification was thus made pursuant to the statutory framework for counting votes and certifying the winner (see generally Election Law § 9-200). I am unable to find any provision of the Election Law — and none has been cited to me — which allows the local BOE to then alter the certification made following the detailed procedures of the Election Law on the basis of an informal staff meeting — at least not without a court order ^[FN12] (see Election Law § 9-218).

In light of these findings, petitioner is correct that the evidence introduced at the hearing does not eliminate the possibility that but for the error made in counting the improper affidavit ballots, Lumpkin might have been credited with three fewer votes, and Davis could thus have achieved a tie.

But this does not mean that Davis has met the standard for a new primary election. A petitioner seeking such relief under section 16-102(3) must show that "the result of the election would be changed by a shift in, or an invalidation of, the questionable votes." (Matter of Lisa v Board of Elections of the City of New York, 40 NY2d 911, 912 [1976]). The petitioner does not meet this burden "by a mere showing that the decision was mathematically close" (id.). Nor is it enough for petitioner to demonstrate "a mere mathematical possibility that the results could have been changed" (Matter of Ippolito v Power, 22 NY2d 594, 598 [1968] [citation omitted]). Rather, he must show that "the irregularities are sufficiently large in number that there is a probability" that the outcome would have been different (see Matter of Henry v Mahoney, 105 AD2d 1159, 1159 [4th Dept 1984], citing Matter of Ippolito, 22 NY2d at 597; accord Matter of Sansivieri v Fisher, 176 AD2d 840, 841 [2d Dept 1991], lv denied 78 NY2d 861 [1991]; Matter of Farano v Monahan, 46 AD2d 695, 696 [3d Dept 1974], aff'd 35 NY2d 729 [1974]).

Petitioner has not made such a showing. Rather, he has demonstrated that under a very specific set of circumstances — if the four miscounted affidavit ballots were in Davis's favor to the greatest extent possible — the election would have been even. But the fact that Davis could conceivably have achieved the electoral equivalent of drawing an inside straight does not mean he prevails here. Indeed, these circumstances bear a close resemblance to those considered by the Court in Matter of Henry, and which were found insufficient to warrant a re-vote. In that case, there were three "ineligible votes," and the prevailing candidate had won by two. Thus, if all three had wrongly been counted for the victor, the result would have been different. Nevertheless, the Appellate Division found that "[u]nder these facts and in the absence of fraud a valid determination is not rendered impossible by the remote possibility of a changed result" (105 AD2d at 1159). That is exactly the case here.

Finally, the appellate courts have recognized that in some "rate" instances a showing of [*6]fraud, or of problems in the conduct of the election sufficiently pervasive to call the fairness of the entire process into question, could require a re-vote even in the absence of a specific showing that the result would probably have changed (see Lowenstein v Larkin, 40 AD2d 604 [2d Dept 1972] [granting application for new vote upon finding that election was "one of those rare elections conducted so badly that even though illegality of specific votes cannot be attributed to the misconduct, still it must be found that the resultant mischief held such potential for changing the result that every dictate of fairness and protection of the voters' franchise demands a new election" ] [citation and internal quotation marks omitted], affd 31 NY2d 654 [1972]; see also Beatty v Owens, 57 NY2d 952 [1982] [rejecting application for re-vote upon finding that it met neither the Ippolito nor the Lowenstein standard]). But there is no such evidence here. Petitioner has not adduced any proof to show that the scanning of the duplicate affidavit ballots was part of some fraudulent scheme. To the contrary, the testimony of the Board's witnesses appears to show at most that there was miscommunication and a misunderstanding by those staff members who scanned these ballots as to the fact that they had already been rejected. Indeed, once the staff realized there was a problem they promptly worked to determine what had occurred and to inform the relevant parties. Thus, the record before me simply does not contain evidence of the kind of pervasive problems or fraud that would require a new election.

Petitioner points to the fact that eight affidavit ballots out of a total of ten were submitted in one Election District — half of them improperly — as evidence from which the Court could draw an inference that something was sufficiently awry as to compel the need for a new vote. Indeed, the record certainly raises questions about why that would have occurred here, without providing any answers. But that does not mean that I may infer that such was part of some comprehensive fraud that impacted the election for the Common Council member in the Third Ward. As noted, Lumpkin received only three of these eight affidavit votes, and only one more than Davis. This would hardly seem to reflect an attempt to fraudulently alter the outcome of this primary through the mechanism of affidavit ballots, and petitioner has presented no reasons or argument for believing otherwise.^[FN13]

Accordingly, the petition is denied in its entirety.