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New York Citizens Audit is comparing certified election results to a voter file that was not complete.
A difference in the number of votes in a certified election result and the number of voters who voted, according to their voter history in a different data set, is not evidence of a federal crime.
The claim is startling: New York’s election results in 2022 might not be trustworthy because there were more votes than voters.
In a report on the 2022 election, New York Citizens Audit, a group of people who have cast doubt on election administration, claimed there were 35,312 more votes cast than there were voters who voted.
"Certification of New York's 2022 general election appears to be a federal crime; a civil rights violation acting under color of law. Why?" the group wrote.
To arrive at the supposed discrepancy, the report’s authors compared all the votes cast in the U.S. Senate race in 2022, numbering 5,965,684, with the voter roll database that showed who voted in the 2022 election, some 5,930,372 in all.
The group submitted a Freedom of Information Law request to the state Board of Election for the voter roll.
We asked Marly Hornik, the group’s executive director, about the claim that certification of the results might be unlawful. She said that a U.S. Justice Department publication states that it is misconduct to certify something that is neither accurate nor compliant. "Because every American has a fundamental civil right to an accurate and compliant election, that constitutes a deprivation of rights acting under color of law," Hornik said.
The Justice Department publication states broadly that election fraud can involve the counting of ballots and certification of results, and that voters have a right to have their vote counted "fairly and honestly." But the claim New York Citizens Audit makes, that a ballot count from one dataset should always match up to a voter tally from another data set, is not mentioned in the Justice Department document as an example of voter fraud.
Another federal document, the Guide to the Canvass, warns against using the voter roll records as proof that a voter voted, warning that the counts of voters who voted can be higher than the number of ballots cast, the opposite issue of what New York Citizens Audit claims.
The state Board of Elections explained why the election tally and voter roll number could be different. The voter roll captures voter history as recorded in a moment in time, while certified results capture all of the ballots cast during a voting period, including early voting and the tabulation of ballots cast by overseas or military voters, or voters who filed an affidavit ballot.
The group received the voter file on Dec. 19, 2022, four days after the results were certified. The state board does not know when the group requested the file, because the request must have been made under a different name.
The board extracts the statewide voter file, which contains millions of data points, each Monday, which is used to fill all the requests for that data that week. It is then sent on a disc to the requester in the mail. Based on when the data was received, the file could reflect the voter roll from three days before the results were certified, or even more than a week earlier, state election officials said. During the days before certification, counties are still uploading their election data into the statewide database, such as those from military or affidavit ballots. In the 2022 general election, there were more than 401,000 absentee ballots cast, and more than 65,000 affidavit ballots.
The group has a voter roll from before all ballots were processed, and it is comparing that to certified results.
Also, voters who cast ballots might move or die, which can affect whether their voting history records are contained in the voter roll at the time it was requested. There are also different data sources maintained by counties and the state, and there could be problems synchronizing them.
The statewide database is a repository of information as provided by and edited by the county boards, said Kathleen R. McGrath, public information director at the state Board of Elections. "For that reason, it may be best to go county-by-county to get the complete voter participation for a particular election," McGrath said.
We asked Republican officials at the Erie County Board of Elections about New York Citizens Audit’s claims. Commissioner Ralph Mohr and Registration Supervisor Gabriel Chen met with the group to explain how elections are conducted, and both were familiar with the group’s claim.
They confirmed that county boards of election submit records of each voter who cast a ballot to the state board within days of an election. But new data is uploaded as other votes are tabulated, such as overseas ballots and affidavit ballots.
Erie County has nearly 618,000 active registered voters, and in the last five years, there have been four cases of people voting twice, and the cases usually involved a college student who was registered at their home address and at their student housing, Mohr said.
"The number is minuscule," he said.
New York Citizens Audit claims that a count of 35,312 more ballots cast than voters who voted in the 2022 general election, when two different data sets are compared, is evidence the certification appears to be a federal crime.
It is possible that the number of ballots certified in the election and the number of voters who are listed as participating in the 2022 election in a statewide voter file is different. The voter roll is a list of voters in the state at one point in time, and may not match up with the total number of ballots cast in an election. This does not prove the certification of the 2022 election results is a civil rights violation.
The burden of proof in our rating system is on the speaker. New York Citizens Audit did not prove that differing data sets is evidence of a crime. We rate this claim False.
Email interview, Marly Hornik, executive director, New York Citizens Audit, Sept. 21, 2023.
Email interview, Kathleen McGrath, director of public information, New York State Board of Elections, Oct. 5, 2023.
Email interview, Jennifer Wilson, spokesperson, New York State Board of Elections, Sept. 26, 2023.
New York Citizens Audit, report, "New York’s 2022 General Election & The Reign of Error: Apathy, Incompetence, or Malfeasance?" August 2023.
New York State Board of Elections, 2022 general election certified results, U.S. Senate race.
Interview with Marly Hornik, executive director, New York Citizens Audit, on Talk! 100.7FM, via Rumble, Sept. 7, 2023.
U.S. Department of Justice, "Federal Prosecution of Election Offenses, Eighth Edition" December 2017.
Phone interview, Erie County Republican Election Commissioner Ralph Mohr, Oct. 16, 2023.
Phone interview, Erie County Republican Registration Supervisor Gabriel Chen, Oct. 16, 2023.
U.S. Election Assistance Commission, Guide to the Canvass, March 2022.
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