Trailing Jamaal Bowman by 25 Points, Rep. Eliot Engel Sues to Be Able to Challenge Absentee Ballots

More than two weeks since New York’s Democratic primaries, Jamaal Bowman maintains a double-digit lead over Democratic Rep. Eliot Engel, who has filed a preemptive lawsuit preserving his campaign’s right to challenge the validity of absentee ballots. 

With all 50,575 in-person ballots counted, Bowman, a former middle school principal backed by Justice Democrats and the Democratic Socialists of America, leads Engel by more than 12,600 votes. Absentee ballots, meanwhile, are still being counted, with delays caused by the historic number of absentee ballots cast because of the coronavirus pandemic — around 765,000 distributed in New York City alone. The Board of Elections has said it is not sure how long it will take to finish counting absentee ballots, though the Bowman and Engel campaigns say they’ve been told that it will take until early August.

In New York’s 16th Congressional District, there are more than 12,000 outstanding ballots in the Bronx and 27,382 in Westchester, according to election officials. (Among in-person voters, Bowman got around 15,000 votes in each county, while Engel received 9,607 votes in Westchester and 8,405 in the Bronx.) Westchester County officials expect they will begin counting absentee ballots for the congressional race by Monday. The Bronx County Board of Elections did not respond to a request for comment, but Bowman is leading absentee ballots there, according to his campaign. 

Jerry Goldfeder, a longtime election law expert in New York City, is representing Engel’s campaign in the lawsuit, which was filed on July 1. Engel’s campaign is seeking the ability to oversee the absentee ballot-counting process and the right to contest those ballots. Bowman’s campaign has said the lawsuit would unnecessarily prolong the campaign and could disenfranchise voters. 

Given Bowman’s 25-point lead, a substantial portion of the 40,000 absentee ballots would have to be invalidated for the race to tip in Engel’s favor — a highly unlikely scenario. It is not unusual for campaigns to file such lawsuits in close races, but it’s less common when the gap is so large. “We recognize that Mr. Bowman’s lead is substantial, but when the outstanding ballots are well more than three times that margin, it is also clear that primary voters deserve a clear and accurate count (with ballots in question examined fairly by each campaign), however long that requires,” Engel spokesperson Tom Watson said in a statement.

“The right to vote is absolutely central to our democracy,” he added. “Furthermore, we need to make sure we get this mail-in ballot process right, especially ahead of November’s critical presidential election. During an era when voting rights are under attack by reactionary forces around the country, here in New York the will of our Democratic voters must be preserved, whatever the outcome.”

Watson said the purpose of the lawsuit was to make sure the campaign had access to the ballot-counting process and to ensure that every ballot is counted. “It can go both ways, you can contest it to be included as well as contest it to be excluded,” he said. “In theory, you wouldn’t want all this to happen behind a curtain, where you’re accepted or not accepted, and there is no access to that process.”

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At a July 7 hearing, Bowman’s campaign had the chance to respond to Engel’s suit, and the state Board of Elections said it didn’t expect to have full results from mail-in ballots until sometime in August. Bowman’s campaign said it doesn’t expect much to come of the suit, given the margins of Bowman’s in-person vote count and early absentee results from the Bronx. 

“Eliot Engel’s unnecessary lawsuit would not only further delay the results for our district, but could also wind up disenfranchising voters,” Bowman campaign manager Luke Hayes said in a press release Wednesday. “We’re not going to stand by and let that happen, which is why we built a legal team to take on these challenges and make sure every single vote is counted.” 

Candidates in two close state legislative races within the district have also filed lawsuits related to absentee ballot counts, according to a spokesperson from the Westchester County Board of Elections. In the 38th State Senate District, Clarkstown Town Clerk Justin Sweet has a 10-point lead over is Elijah Reichlin-Melnick, with all in-person votes counted. In the 93rd State Assembly District, Bedford Town Supervisor Chris Burdick has a slim 3-point lead over his opponent Kristen Browde, a prominent local attorney. In other down-ballot races, candidates for local and state office are fundraising for legal fees to prepare for contested ballot counts as officials continue to count absentee votes. Incumbents and party-backed candidates in those races have access to party-retained lawyers from firms with ties to county Democratic machines, like Greenberg Traurig, Abrams Fensterman, and Sweeney, Reich & Bolz. 

Engel has been in office since 1989, and Bowman’s challenge was the first serious primary he faced since 2000. Engel’s reelection campaign took a turn for the worse as the coronavirus pandemic and ongoing protests for racial justice consumed the nation. Engel’s district was one of the hardest hit areas by the pandemic; despite that, as The Atlantic reported, he had spent the duration of the crisis in Maryland, even while claiming that he had been back in the district. In June, following a night of protests in the Bronx, Engel was caught on a hot mic vying for speaking time at a press conference, saying, “If I didn’t have a primary, I wouldn’t care.” In the week leading up to the election, The Intercept revealed that a Republican Super PAC was working with another Super PAC called Democratic Majority for Israel to boost Engel, who also received late-stage endorsements from Hillary Clinton and the Congressional Black Caucus PAC. 

As the pandemic has led to a surge in mail-in voting across the country, it is likely that it will take weeks for the results of the presidential election to be finalized if it’s a tight race. President Donald Trump is already raising the specter of voter fraud when it comes to mail-in voting (even as he regularly votes by mail himself), and Republicans have taken note of the counting delays that occurred after Pennsylvania’s primary.