Tiffany Cabán’s Volunteer Army Faces a New Challenge: The Recount

Angela Sherpa could hear fireworks on the Fourth of July, but she couldn’t see them. The 22-year-old activist from Queens spent her holiday with dozens of other volunteers inside a co-working space in Bushwick, sorting paperwork and looking up voter registration information. The night before, her chosen candidate in a contested primary for Queens district attorney, public defender Tiffany Cabán, had fallen behind Borough President Melinda Katz by a razor-thin margin of just 20 votes.

“I just wanted to start working again,” Sherpa told The Intercept. “I wanted to be around people who cared as much as I did, because I just felt really defeated.”

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The sudden turn came after Cabán claimed victory on June 25, and with it, the viability of her aggressive anti-carceral platform. Katz, the candidate favored by the Queens political establishment, trailed by 1,090 votes on election night. But she more than made up the difference with paper ballots, a mix of absentees and affidavits (the latter are distributed when a voter’s name doesn’t appear on the rolls).

The margin of victory is now less than one half of a percentage point, prompting a mandatory recount of more than 90,000 votes — a labor-intensive process that began today and will last for at least ten days. The winner will head to the general election in November and is heavily favored to become the top prosecutor in a diverse borough of 2.5 million people.

Tiffany Caban, left, after voting, and Melinda Katz, right, talks to poll workers before voting in Queens on June 25, 2019. Photos: Seth Wenig/AP

County-wide recounts are rare in New York. “The largest I can remember were for a single legislative district,” local election lawyer Sarah Steiner told The Intercept. Reversals are also uncommon in large recounts, according to Rob Richie, CEO of nonpartisan advocacy group FairVote. In this landscape, the Cabán campaign’s post-election strategy is uncommonly robust and proactive. Its tactics have included contacting voters, which the Katz campaign has criticized.

An organizer with Amplify Her NYC, Sherpa cashed in two vacation days from her legal assistant job to join an unprecedented network of 380 volunteers, including 165 lawyers. Under the direction of Cabán’s legal team, they’re rolling out a multipronged strategy that includes constant eyes on the recount, research for a possible ballot-by-ballot legal challenge, and legislative pressure.

Some of the Cabán campaign volunteers at the Board of Elections in Queens on July 12, 2019. From top left: Cara Gallo-Jermyn from Queens; Javier Anderson, from the Bronx; Ted Pauly, from Brooklyn; Emma Rehac from Harlem; Steve Martinez from Long Island; Katie Hawkland from Queens; David Yang from Queens; and Kara McCurdy from Queens.

Learning Process

Aaron Taube, 30, is a Cabán field organizer and member of the Queens branch of the Democratic Socialists of America. He says the post-primary day strategy is deeply familiar in some ways and completely uncharted in others.

For example, DSA has already proven its ability to organize robust field operations: to elect New York Rep. Alexandria Ocasio-Cortez, canvass against a proposed Amazon headquarters in Queens, and bring Cabán within an inch of victory. The group has quickly called in that same network of volunteers. But recounts pose a new challenge, bringing Cabán supporters face to face with complex Board of Elections processes that Steiner has described as a “morass.”

There’s been a big learning curve in reviewing affidavit ballots. These ballots tend to be rejected at higher rates than absentees, according to FairVote attorney David O’Brien. New York affidavit rules in particular are “very stringent,” he added.

According to the BOE, of 2,816 affidavits cast on the day of the primary, more than 2,300 were initially discounted for a range of envelope errors: from missing date and signature to party affiliation. OF 5,287 absentee ballots, roughly 1,700 — or a third of ballots— were invalidated.

Cabán lawyers Jerry Goldfeder and Renée Paradis say they’ve identified dozens of contestable invalid affidavit envelopes, including Democratic voters who simply failed to indicate their party affiliation on the envelope, or who may have been directed to the wrong polling site. Goldfeder appeared in Queens Supreme Court after July Fourth to lay groundwork for such a challenge. “If the vote of the manual recount is close, we will go to the court and ask the judge to open up all of the ballots that have been erroneously invalidated throughout the borough,” he told reporters outside the courthouse.

No IDC NY, a grassroots group credited with helping to overturn a cohort of Republican-aligned Democrats in the state Senate in 2018, has also launched a social media campaign with Cabán supporters demanding that Gov. Andrew Cuomo immediately sign legislation that would raise the threshold for disqualifying an affidavit ballot. Currently, case law has reinstated “substantially” compliant ballots; the bill would enshrine that precedent in law, hypothetically preventing the need for litigation. Cuomo has said he does not plan to sign the bill right away, though.

“I think the larger issue is that structurally, it’s harder to vote than it should be,” Taube said. “No one, at least to our knowledge, is taking a big box labeled ‘Cabán votes’ and throwing them in the trash. It’s just that this stuff is structurally designed to protect incumbents.”

But accusations of election rigging from Cabán supporters on Twitter have muddied that message, and tested the campaign’s communications savvy. Some tweets alleged outright voter fraud, of which there has been no evidence. In particular, high-profile Cabán supporter Shaun King fundraised tens of thousands of dollars through his Real Justice PAC for the recount response effort in a matter of hours on July 3, with tweets alleging that Queens Democratic officials “threw out 2,300 votes from Election Day.”

https://twitter.com/shaunking/status/1146603707066224640

Five days later, on July 8, the campaign issued a statement that “there has been no evidence of fraudulent activity by the BOE.” Cabán spokesperson Daniel Lumer would not comment directly on the status of those funds, saying only that “with the volunteer and financial support that has come in, we are able to fight to make sure no Queens voters are disenfranchised.” (King is a columnist for The Intercept. He did not respond to requests for comment.)

Meanwhile, Katz’s side has played the drama to its advantage. “The Cabán camp has worked to undermine faith in the electoral system since Election Night, and we trust that it will not attempt to do so as this crucial process begins,” Katz spokesperson Matthew Rey said Monday in a prepared statement.

Cabán campaign volunteers sit to the side at the Board of Elections facility in Queens on the last day of ballot sorting before the recount can begin.

Full-Court Press

On a recent Wednesday, 20 volunteers observed recount preparations on behalf of the Cabán campaign. Some traveled far: from Manhattan, Westchester County, and Long Island. They’d signed up for four-hour shifts at the BOE’s voting machine facility, a brightly lit room leased inside Metro Mall in Middle Village, Queens, where BOE staff unsealed bright blue ballot bins.

During her lunch break at a nearby Burger King, Denise Rickles, a 75-year-old retiree from Washington Heights, in Manhattan, said she’s inspired by the young people who have taken charge of the effort. “To me, at this point in my life, I think that, you know what? It’s really up to young people to make anything work in this world,” she said. “It just is.”

With the recount starting today, volunteer attorneys are taking over these shifts. Of particular interest are ballots that voters failed to bubble in precisely. Any ballots with “clear voter intent” will be counted, according to the BOE. Both campaigns believe that there are hundreds of ballots that were not read by the scanners for various reasons, based on discrepancies between the machine count and the number of voters who signed in at polling places.

Housing lawyer Jared Rich attended a training session with more than 30 other volunteer lawyers at Goldfeder’s office earlier this month. “This is my first time doing this, but just as a lawyer who has experience litigating and getting thrown into the heat of battle, that’s good experience to have to deal with challenges,” he said.

Meanwhile, another Cabán group is tasked with providing research and assistance for the legal team. Stationed in the Working Families Party office in downtown Brooklyn, a group of roughly 10 paid staffers is pouring over photocopies of the preliminarily invalidated affidavit ballots. Questionable ballots from likely Democrats are set aside for possible legal challenge after the recount.

Reviewing public records to predict which affidavit challenges are most likely to prevail in court is common practice, election experts told The Intercept. There is less consensus on another Cabán campaign tactic: contacting affidavit voters by phone to seek details such as whether the person is a registered Democrat and if they had recently moved. Some voters have been asked who they voted for, according to Working Families Party National Campaigns Director Joe Dinkin, who is helping with the effort.

Steiner balked at this, calling questions about who a person voted for particularly “reprehensible and intrusive.” But MIT political science professor Charles Stewart III said he’s familiar with the tactic. “The campaign that is behind in the initial count in particular has an interest in finding voters who supported them, because they are natural plaintiffs in any lawsuits filed over the election process,” he said. Asking who a person voted for “certainly raises concerns in the minds of the voters, but from the perspective of the affected campaign, I don’t know the alternative.”

The Cabán campaign has framed its efforts as an all-inclusive voter protection project, arguing that voters might otherwise never learn that their affidavits weren’t counted. Dinkin notes that the campaign’s initial efforts compelled the BOE to reinstate one Katz vote in addition to five Cabán votes, closing the margin to 16 votes. “We are being transparent with them that we are calling as part of the Cabán campaign and want to understand their experience of voting to make sure it counts,” he said. “And of course, we are fighting for all voters.”

“We don’t think it’s right,” Katz’s attorney, Frank Bolz, told reporters last week. He made a zero with his thumb and index finger to indicate how many voters his campaign has called.

Rey, Katz’s campaign spokesperson, said they plan to review all affidavit and absentee ballots for “ministerial errors.” But Katz’s legal team has not decided whether it will fight for certain ballots to be resuscitated. As for Cabán’s outpouring of volunteers, Rey said there will be a Katz-affiliated observer for each Cabán observer throughout the recount, which is “all that matters in this process.”

Democratic consultant Jerry Skurnik called the sheer number of post-primary Cabán volunteers “extraordinary.” With this outpouring comes increased capabilities, and a new debate about what’s appropriate. Skurnik has assisted two candidates through recounts since the mid-1980s, in local elections for Democratic state committee and civil court judge. In both cases, he could count his team on one hand. “We didn’t have time to call the voters,” he laughed. “We were lucky to show up.”

Details from the last day of ballot sorting at a Board of Elections facility in Queens, New York, on July 12, 2019. Photos: Ariel Zambelich/The Intercept

“Not a Fluke”

During a press conference in Forest Hills last week, Queens Democratic Party boss and U.S. Rep. Gregory Meeks argued that Cabán’s supporters are outsiders. Standing with dozens of party, union, and faith leaders, he motioned to the crowd. “I personally feel like a lot of the people making that noise, they don’t come from Queens — these folks do,” he said.

Skurnik believes that Cabán’s success has put the borough’s Democratic establishment in competitive strategy mode. “For every action is a reaction,” he said, noting that this recount comes on the heels of Ocasio-Cortez’s victory in Queens. “Now that it’s happened twice in two years, they’ll know it’s not a fluke. Presumably they’ll be doing something to increase their turnout and make sure no one is caught by surprise next time.” (Meeks also threatened a primary challenge to Ocasio-Cortez last week. “If you get in the ring, expect that people are going to start throwing punches,” he told the New York Daily News.)

For Cabán volunteers, the thrill of proving that they’re formidable hasn’t faded. Katelin Penner, 19, founded Our Progressive Future, a small organization aimed at getting young people into politics. She notes that Cabán’s run helped the grassroots criminal justice groups that support her articulate their demands for a district attorney who refuses to request bail and incarcerates as a last resort. “We now have a group of people we’ll be able to have conversations with to keep the DA accountable,” she said.

That buzz is mixed with frustration, which has hardened into determination and planning for the future. The next time DSA helps a candidate with field operations, Taube said, it’ll be strategic with absentee ballots, which helped Katz pull ahead, and have them “at the doors when we knock.”

Mel Gagarin, 37, is a grad student and dad of three from Kew Gardens, Queens. A DSA member, he took advantage of his stay-at-home-parent status to sign up for multiple volunteer shifts post-primary. 

“The real nerves existed on election night as the early results trickled in, because we had no idea if an actual grassroots, people-powered campaign was going to be competitive borough-wide,” he said. “If anything, I would say the feeling isn’t nervousness, but one of feeling emboldened to keep up the fight no matter how it ends, because it’s clear that the status quo won’t go quietly into the night.”

Correction: July 15, 2019, 12:40 p.m. ET
A previous version of this article misspelled Katelin Penner’s name.