Andrew Yang’s supposedly defunct mayoral campaign served competitors papers in a preemptive lawsuit filed ahead of the city’s counting of ranked choice votes — charging on even after conceding the race Tuesday.
The move came as a Staten Island City Council candidate launched a similar lawsuit in another crowded race — heralding a potential onslaught of legal actions in a primary featuring a record number of candidates and the local debut of ranked choice voting.
“I don’t think it’s necessary. It’s detrimental to the democratic process and what these kinds of things do, is it clearly demonstrates the kind of advantages that well-funded campaigns have especially over [smaller] campaigns,” said Art Chang, one of the 13 candidates who competed against Yang in the Democratic primary.
Pre-emptive suits can preserve a campaign’s right to correct any errors in election returns so that a judge can step in if necessary. Going to court ahead of the count may be attractive to some candidates given that the extended tallying period for the new ranked choice voting system makes for tight legal filing deadlines.
Still in play in the primary are the 220,000 absentee ballots requested across the city. Some 82,682 have been returned so far.
They must be received by Tuesday to count, and then any minor ballot errors need to be corrected by voters by July 9 before the full ranked-choice tabulation can begin. That means it’s likely the race for mayor and many other offices won’t be decided until the week of July 12.
Democratic mayoral candidate Aaron Foldenauer, who said he was served with the Yang lawsuit Thursday, told THE CITY the legal tactic “evokes Donald Trump.”
“This frivolous lawsuit is not only wasting Andrew’s money but it’s also a huge waste of taxpayer money,” he said.
After leading polls for weeks in the mayoral Democratic primary, Yang finished fourth out of 13 candidates in the initial tally of in-person votes on Tuesday. Brooklyn Borough President Eric Adams emerged ahead of the pack, with Maya Wiley and Kathryn Garcia next in line.
Yang’s press team didn’t directly answer questions about the lawsuit, filed June 18 in Bronx Supreme Court. But the representatives pointed to a tweet from Chris Coffey, Yang’s co-campaign manager: “It’s standard practice for protecting absentees and we are withdrawing. Calm down.”
It’s a standard practice for protecting absentees and we are withdrawing. Calm down. https://t.co/gydmSKbSiA— Chris Coffey (@chriscoffeytalk) June 24, 2021
In Staten Island’s Mid-Island area, Republican candidate David Carr, who has the support of most of the borough’s GOP politicians, filed a similar lawsuit in the middle of Primary Day. The move came after another candidate, U.S. Marine vet Marko Kepi, was targeted by the Staten Island District Attorney’s Office for possible illegal ballot harvesting and allegedly forging a dead man’s signature.
“As the absentee and affidavit ballots are counted, we wanted to preserve our right to go through the legal process should there be problems,” said Carr, Councilmember Steven Matteo’s (R-Staten Island) chief of staff, in a statement.
Tiffany Cabán made a similar move in 2019 when she held an initial 1,199-vote lead over Melinda Katz in the Democratic primary for Queens district attorney, saying she wanted to make sure her campaign could move swiftly in the courts if there were any “irregularities.”
Cabán, who lost a recount after a hard-fought battle, is currently ahead in the Democratic primary for an Astoria City Council seat, according to an initial count of in-person, first-place votes.
A ‘Ridiculous’ Law
Election law attorney Jerry Goldfeder, who represented Cabán in 2019, noted in an interview on Thursday that candidates only have 10 days from the election to file their lawsuits. That gives them the impetus to sue pre-emptively since absentee ballot returns and ranked choice voting tabulations likely won’t be available by the filing deadline.
“So candidates are in the unenviable position of having to bring a lawsuit to protect their rights before they know any of the results or wait until the results, and then be barred from bringing a lawsuit,” he told THE CITY. “This law regarding the timing of election lawsuits is ridiculous in that it causes many to be brought without any basis.”
Foldenauer, an election lawyer, noted that close contests for Manhattan district attorney and other races packed with candidates could lead to more legal actions, potentially delaying results in some cases.
“There’ll be other election lawsuits,” Foldenauer predicted. “It depends on what the margins are.”