Judge in Westchester voting recount says homeless shelter can, but jail cannot, be a residence

by Peter Wagner, January 3, 2005

The winner of the New York 35th Senate district race is still undecided two months after the election. Lawyers for both sides are disputing how ballots were handled, as well as which absentee and provisional ballots should be counted in this very close race. Republican incumbent Nicholas A. Spano has a narrow lead in the recount, and he has sought to disqualify many of the uncounted ballots in order to preserve that lead.

Initially challenged were the votes of two homeless women. They testified on December 9 that they had lived at the homeless shelter long enough to make it their residence. Lawyers for both sides agreed with the judge that the women’s votes should be counted.

But 7 prisoners in the Westchester County jail were not so lucky. Lawyers for the incumbent successfully argued that a jail can not be a residence, and so the votes were disqualified. Although convicted felons serving time in prison or on parole cannot vote in New York, people awaiting trial or serving short misdemeanor sentences retain the right to vote. Thus people in jails should generally be allowed to vote. But where?