LEGALcurrents®

On November 4, 2020, we provided an election update and indicated that there were not yet results available in New York because of the large number of absentee ballots that had to be counted.  We still don’t have final, certified results, but we wanted to send an update on what we know to date.

Per New York’s election law, absentee ballots must be postmarked by Election Day and received by November 9 to be counted.  As of election night, we knew that 1.2 million absentee ballots had already been returned.  We don’t have the final certified number yet, but it has been announced unofficially that over 1.9 million ballots were received by the legal deadline.  When the final counts are certified, it is possible that the final absentee ballot count will surpass 2 million.  For comparison sake, in 2016 there were 400,660 absentee ballots counted.

The initial election night results saw some very close vote counts, and in some cases, we saw incumbent Democrats across the state trailing their Republican challengers.  From the absentee ballot returns, it was known that the returned ballots were skewing 2 to 1 more Democratic than Republican, but this does not necessarily indicate what will happen with the results.  As the absentee ballot counts began, a trend emerged where the absentee ballots began to break even more strongly for the Democrats.  It is now clear that at the state level, the Democrats had a very strong showing in the absentee ballot count.

We knew on election night that there was not going to be a change in Democratic control in either the Senate or Assembly.  The only outstanding question was how large the majority would be, and for the Senate, whether they would see 42 members in their conference, which would make them veto proof.  As a reminder, the Assembly has been veto proof for a number of years, and if the Senate were to also become veto proof, this would mean that if the two houses passed a bill that was subsequently vetoed by the Governor, the two houses would have the votes to override the Governor’s veto.  This override power has the potential to alter the power dynamic in the state as between the executive and the legislature.

In the Assembly, which has 150 members, it looks as though there will be 107 or 108 Democratic members and 42 or 43 Republican members.  After the 2018 elections, the Assembly had 107 Democrats and 43 Republicans, so while we will see some new faces and a few seats with a new party representing the district, we will not see a significant change in the power composition. 

In the Senate, which has 63 members, there are six races that are still being counted and are very close.  Of the six seats remaining to be decided, four are Democratic controlled seats and two Republican controlled seats.  It appears that the Republicans are poised to gain control of two of the Democrat controlled seats, while the Democrats will maintain control of the other two seats.  The Democrats have already picked up three seats that were former Republican held seats, two in the Rochester area and one in Buffalo.

For the two Republican controlled seats, the margins are making the races simply too close to call.  If the four Democratic seats break as we anticipate, there would be 41 Democrat Senators.  The Democrats would need to pick up one more of the two outstanding Republican seats to get their veto proof majority.  We are not likely to know final results for at least another week or two.  One of the seats too close to call is in the Syracuse area.  The ballots were being counted at the Onondaga County Board of Elections when eight staff members were diagnosed with COVID-19.  As a result, counting was paused and will not begin again until November 30. 

As soon as we have final results, we will send along that information.  There had been some talk of a potential return of both houses before the end of the year for a special session.  While there is still some talk of that happening, it appears that a special session is unlikely to happen, and we will instead see a return in January 2021 when the new legislative session will begin.  If there is a return, we will be sure to update you.

If you have additional questions about this update, please reach out to a member of our Government Affairs practice group for assistance:

Amy J. Kellogg
John M. Jennings
Donald S. Mazzullo


Attorney Advertising. Prior results do not guarantee a similar outcome. This publication is provided as a service to clients and friends of Harter Secrest & Emery LLP. It is intended for general information purposes only and should not be considered as legal advice. The contents are neither an exhaustive discussion nor do they purport to cover all developments in the area. The reader should consult with legal counsel to determine how applicable laws relate to specific situations. ©2020 Harter Secrest & Emery LLP

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