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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning, everyone. All right, are you ready for in-person rank choice voting results take two? Ready or not, here they come. You all probably know that the New York City Board of Elections tried on Tuesday to release the interim results for mayor, from pretty much everything but the absentee ballots, but they accidentally included the votes on around 135,000 sample ballots that were only supposed to be used to test the system beforehand. Major oops. Yesterday, they took the sample ballots out and released what should be the real numbers and the headline is, it came out mostly the same for the part that really matters.

With second choice votes and below all factored in for voters whose first-choice candidate was eliminated, Kathryn Garcia has almost caught up to Eric Adams. Out of around 800,000 in-person votes cast, Adams leads by only around 15,000. Another way to put that is, he leads by two percentage points, 51 to 49. There are about 130,000 absentee ballots, which will get counted next so it could still go either way, but here's an important difference between the real results and the sample ballot ones, it could still be Maya Wiley, and not Kathryn Garcia, who makes it to that final round calculation versus Eric Adams, because Garcia barely beat Wiley for second place, and the absentee ballots could still change that.

There is definitely some rank choice voting math to explain this morning. If we are smarter than a fifth-grader, we can do it. There is also the question of what to do about Board of Elections incompetence. People who've gone to grad school haven't been able to figure that one out yet. With me for this is WYNC senior political reporter, Brigid Bergin, who I will say is smarter than a PhD when it comes to this stuff. Good morning, Brigid. Here we go again.

Brigid Bergin: Good morning, Brian. Let's do it.

Brian: Let's walk step by step through some of this math. First, assuming it is Adams and Garcia in the final round, let's go over the basics of that one more time. How close is it between them now with how many votes left to count?

Brigid: As you said, it is narrowed to about two percentage points between Adams and Garcia and that translates to just under 15,000 votes. We know that there are about 125,000 absentee ballots that have been returned, and additional affidavit ballots. Now, not all those ballots will count, but a substantial number of them will, because of some reforms to election law passed by the legislature last year that created, what's called a cure process, so that ballots in previous elections that might have gotten kicked out for technical reasons, they will likely be corrected and counted in this tally. There's a substantial number of votes that could influence how this ranked tally looks when we do it again next week.

Brian: On primary night with only the first choice votes counted among the in-person voters, Adams had around a 12 point lead over Garcia, 32% to 20%. Now, it's only a two-point lead. How exactly did rank choice voting catch Garcia up that much?

Brigid: The process for rank choice voting and I say, I preface of this by stressing, this ranked tally that we saw this week, as you said, Brian, is just based on in-person votes cast during early voting, and on primary day, and it is a nonbinding, unofficial snapshot of where the race stands.

One of the things, when we look at some of the tallies that show us how the different rounds of counting that took place, the word eliminated gets used, and that's, I think, should be considered for the purposes of understanding where we are right now, a technical term, but not necessarily the most accurate way to describe the standing of things, because candidates who are technically eliminated right now, well, they're only eliminated in this preliminary tally.

That being said, they used rank choice voting and the tabulator the city Board of Elections is using to do the tallies for nine rounds of counting that "eliminated" candidates that were the least performing, and then redistributed their second through fifth choice votes to candidates that were performing better than they were.

What we saw is up until some of those final rounds, just before Kathryn Garcia came in second place and edged out Maya Wiley, the candidate before them to be eliminated was Andrew Yang, and when his votes were redistributed, it gave Garcia the lead to eclipse Wiley by this incredibly narrow margin of less than 350 votes. That's also what helped Garcia catch up to Adams, actually, to help Garcia and Wiley catch up to Adams, and why the race is now so so tight.

Brian: Maybe we should remind people in mathematical terms of the object of the game, nobody wins until they get past 50% of the votes. Adams got the most first-place votes with 32% among the in-person voters, 32%, but that is not the ballgame, you have to get to 50%. Under rank choice voting, as you were just describing, the last place person gets, "eliminated," and their voters' second choice candidate then gets those votes and that keeps happening until someone makes it past that 50% threshold. It's the whole point of rank choice voting. If our first-choice candidate loses, we still get a say in who ultimately wins if nobody won a clear majority right away.

Back to how Garcia caught up, Brigid, you were just starting to get at this, but let's go even a little deeper. Would it be accurate to say that so many people who voted for Maya Wiley first, or voted for Andrew Yang first listed Garcia second, fewer of those Wiley or Yang voters listed Eric Adams as their second choice, so as Wiley and Yang got mathematically eliminated in this model, among the in-person voters, Garcia greatly benefited from those second choices and that's why we are where we are?

Brigid: Yes, we definitely see that Garcia picked up more votes in that elimination round than Maya Wiley, and that's part of what enabled her to pull ahead. As we know, one of the defining features of the end of this campaign was that sight of Andrew Yang and Kathryn Garcia out campaigning together, with Andrew Yang making it very clear that he was giving an explicit endorsement to Garcia saying that anyone that was ranking him first on their ballot should have her on their ballot, and presumably have her second.

Garcia was not offering the same full-throated endorsement. She was out there on the campaign trail, supporting rank choice voting. If we look at these results, it would suggest that this was a strategy that benefited her and really, she was the only candidate who throughout the race, was talking more about wanting to be people's choice. She pushed back against the notion of being people's second-place choice, until that final stretch, and this may have been the thing that helped push her over the edge.

Again, I have had so many conversations with people this week. Some people, deeply frustrated by the fact that the board even released these results to begin with, because the only thing that we know for certain at this point, is that they will change again, next Tuesday, when we tally the results one more time with another 125,000 votes in the mix. All of this analysis comes with the caution that this is a moving target.

Brian: Nevertheless, they are interim results of what is known so far of about 85% of the votes, so it indicates what the parameters are for what remains to be counted. Listeners, if you have any questions about the mayoral election as it stands for Brigid Bergen, 646-435-7280, 646-435-7280, or about the Board of Elections dysfunction, which we'll get to, you can call in or tweet @BrianLehrer.

All right, Brigid, so that had some math to it, everything we've done so far, but was fairly comprehensible, I think, now we get to the tricky part. It might be Maya Wiley and not Kathryn Garcia who gets to that final round against Adams. What's the math behind that?

Brigid: Well, as we've been talking about, you've got those 125,000 absentee ballots, and depending on where those ballots are coming from and who those voters supported, we could see these tallies shift again. It's such a narrow margin, with less than 350 votes between Kathryn Garcia and Maya Wiley.

The other part of this, this part we want to say quietly so that perhaps we finish this election at some point, is the wild card of potential legal challenges. One of the things that we know so far is that both the campaigns for Eric Adams and Kathryn Garcia filed preliminary lawsuits that preserve their right to challenge the counting.

There is a deadline to do that initial step of tomorrow, and so they have made clear that they will be watching this counting very closely, and if it comes to the point where they are objecting to votes for a certain reason, they have the ability to do that. When I reached out to Maya's Wiley campaign with the same question, were they planning to file that, they didn't have a comment for me at the time.

We know that she is actually doing her first press avails since last week, later this morning, and Gothamist and WNYC will be there to hear what her take is on these preliminary results. In some nightmare scenario, there is the chance that there could be objections that would require manual recounts of certain numbers of these ballots. We saw that certainly during last summer's primary election when the results weren't certified until sometime in August, but we're not at that point yet, Brian, but that is among the possibilities that could change the outcome and make for a very long summer.

Brian: With rank choice voting, does any degree of closeness in the final result trigger an automatic recount? Would anything make the Board of Elections have to do all that by hand, which could be a galaxy size nightmare?

Brigid: That is just such a thought to behold Brian. I was actually just emailing and going back and forth with election law attorney, Jerry Goldfeder, before I came on this morning, who has drafted a letter, and is of the opinion that the board does need to consider the way they would trigger a manual recount in this rank choice voting process. Normally, if the margin between the final candidates is less than half of 1%, that is what would trigger the full manual recount, as you, I'm sure remember, we saw that not too long ago, in the Queens district attorney primary. Jerry Goldfeder was also a part of that process, representing Tiffany Cabán. He--

Brian: But not rank choice voting, that was just--

Brigid: Not rank choice, so his argument, though, which is an interesting one is that if you are eliminating candidates where there is a margin that is that close, that potentially, should there be a manual recount triggered at an earlier round, to ensure that someone is not being eliminated prematurely, who shouldn't be?

Brian: That's where it could come into play between Wiley and Garcia,for who finishes second before they go on to the final rank choice round against Eric Adams. What did Goldfeder say about that? Would there be a recount between Wiley and Garcia for second place, if it stays this close?

Brigid: Well, Jerry, if you're listening, I look forward to talking to you later since we've been emailing about it, but my understanding of his position is that he thinks the board does need to consider instituting manual recounts earlier in the ranked elimination process. That could mean potentially having manual recounts before we get to the final rounds, that at an earlier elimination round, if that margin is very close, that there should be more of a manual recount. If you play that out, you could imagine how that could take quite a bit of time.

Brian: We'll have the Labor Day rank choice voting results party, maybe, in that scenario. Mitchell in the Bronx, you're on WNYC with our senior political reporter, Brigid Bergen. Hi, Mitchell.

Mitchell: Hi, Brian. I would just like to actually respond and say that I've noticed that the coverage for Maya isn't actually being given the same amount as Ms. Garcia, and that really the three people that actually in this tally, besides the five that dropped out, really the coverage should be stating that Maya is really in second place, as close to Garcia as anyone.

Brian: Right well, she's not in second place. She's in third place, but I agree with your larger point. I think we're doing that here, we're explaining just how close they are, and that Maya Wiley, in fact, might wind up as the second place candidate before the final round. All right, thank you very much. I guess maybe that was a satisfying answer to him, because he didn't say anything.

Really, this part, to linger on that for a second, because Mitchell is right about Wiley being so close, that it should be-- the headlines, instead of saying, Adams and Garcia, it should say Adams and Garcia or Wiley.

Brigid: I think that is why some people really have raised objections about how the board should have been releasing these interim tallies, which, as we've been saying, are these snapshots in time, but you could argue even the snapshot is out of focus, because you don't have the full pool of eligible ballots to do the ranking. There was a debate among the elections officials about when and what they would release. One of the things-- this is the first citywide race with rank choice voting, but we did have three special elections, two of which went through that rank choice voting.

Even candidates in those races criticized the fact that the ranked choice process didn't start until all of the eligible ballots were in. That piece of it has nothing to do with rank choice voting, that has to do with reforms made to our election law to ensure that all eligible absentee ballots are counted, but in those particular instances in those special elections, they did a manual rank choice voting tally and that was because the State Board of Elections was still testing and certifying the software that we used for this rank choice tally.

The board was criticized for not releasing additional information sooner. There were others who thought that the board should have been releasing what's called the cast vote record as soon as potentially the Friday after the primary, so that other organizations, media outlets, campaigns, could take the election results as they stood at that point in time, in this case, the in-person results, and run them through the tabulator themselves and check the math, basically, of the Board of Elections.

Unfortunately, if what they had released this week contained the error that was uncovered and forced them to retract that initial round of results, I don't know if anyone else would have caught it sooner. This is a new process and I think there's a lot of figuring out about what is the best way to do something on this scale.

Brian: Absolutely. Well, let's talk about those absentee ballots. You said 125,000 voters, or around 14% of the total vote, those are big enough numbers to make a difference in a close race. I saw that they already announced what boroughs, and what election districts the absentee ballots came from. We know who won among the in-person voters in each district, I believe, so can we predict fairly well who the absentee votes will benefit and by how much?

Brigid: I think that there are certainly people who, campaign strategists, and others, and political analysts that will be looking at where those absentee ballots came from, to try to theorize what that means for particular candidates. I think that's part of the reason why, when we see that more of them are from Manhattan, people are theorizing that that could be beneficial to Garcia.

Again, we don't know but we will know soon, because we will see an updated round of these results at some point on the day of July 6th. We don't know what time on that day. That has been a source of pain and frustration for those of us waiting for results but at some point on July 6th we should know another tally that does include some of those absentee ballots that have been processed so far.

Brian: We don't know what time on July 6 so you're telling me, I don't know if I should book you for the show for the morning of July 6th, or wait until the morning of July 7th.

Brigid: I think July 7th is probably a good idea.

Brian: It might have to be both. Peter, in Manhattan, you're on WNYC with Brigid Bergin. Hi, Peter.

Peter: Thanks for taking my call. What I was wondering is if, it's not going to come this way, but if it were, it's 125,000 split exactly the way the Manhattan vote split, would that be enough for Kathryn Garcia to surpass Eric Adams?

Brigid: That's an excellent question, Peter, and I haven't done the math to be able to give you a fair answer on that. I'm pulling up the tallies now to see if I can eyeball it, but I think that one of the things that we do know is that Kathryn Garcia did extremely well in Manhattan. If the bulk of those absentee ballots do go to her, then we're going to have an extremely close race on our hands, and that she does stand to potentially pull ahead of Adams.

Brian: I know some basic absentee ballot numbers by borough that I've seen, there are about 40,000 from Manhattan, there were about 35,000 from Brooklyn, there were about 32,000 from Queens. They were about 13,000 from the Bronx and about 7,000 from Staten Island. What does this mean? Well, if Manhattan is Garcia country, and there are about 40,000 absentee ballots from there, but Brooklyn and the Bronx were so heavily Adams country, well, 35% plus 13%. That's 48%. That's almost half the absentee ballots come from Brooklyn in the Bronx combined, compared to about 40% from Manhattan.

I think Queens, also, we should say, is probably Adams country, because the turnout in Southeast Queens, which he won by a lot, was so big. My initial guess is that the absentee ballots should benefit Eric Adams, but of course, we don't know.

Brigid: I think to really answer that you have to go a little deeper and see where in the boroughs those absentee ballots came from because that will tell you also more about who is submitting those ballots. That's the kind of digging we're going to continue to do, but that is, again, I sound a little bit like a broken record, but I think that is why people are taking this current tally with a grain of salt, knowing that there is this real X factor of an infusion of votes that deserve and should be counted, that could change the results, and just because those results change, doesn't mean, nothing is wrong with that. It just means that we're continuing the counting process.

Brian: Right. I think we saw in the presidential election, for which we know the absentee ballot totals by now. The absentee voters tended to be older and whiter. Well, older benefits Adams in general, certainly compared to Wiley, and whiter benefits Garcia. Those two may cancel each other out. We don't know, but those are some of the trends. I also saw a stat, Bridgid, that people would find interesting, I think, that shows how much absentee balloting exploded this year compared to the last mayoral election or mayoral primary, which I think was about 25,000 absentee ballots, pre-COVID. Now 125,000 absentee ballots, so that's a lot more people voting absentee.

Brigid: Oh, absolutely. We are definitely seeing the impact of this, post-pandemic election time where there were changes made to expand access to absentee ballots during the pandemic, and a realization among people that we should make getting absentee ballots easier. Currently, our law does allow for to have easier access to absentee ballots, and there is also legislation that has been passed, though not signed yet by the governor that could speed up the counting process for these absentee ballots.

That, I think, probably would help people better understand which part of this process is delayed because of the state laws around absentee ballot counting versus what is a rank choice voting implication. That clearly will not have any impact on this current election, but potentially is a sign of hope for the future about how, at least this piece of the process, could be a little bit faster.

Brian: All right, onto the Board of Elections debacle in our remaining minutes. First, do you see any reason to believe the new version of the count is inaccurate in any way? There are those, including Donald Trump, who would like people to disbelieve anything that comes out now.

Brigid: I think that the board, they put out their statement acknowledging that they had made this error, that it was an egregious mistake, apologizing. I think at this point, they have made certain that the numbers that they're releasing are accurate. The fact that they did catch this mistake, during what is this interim period, when we are just releasing unofficial results, actually, is a sign that we-- this is a slightly hopeful sign. It's not at the end of the process.

It's sowing tremendous confusion and definitely builds on a series of missteps from this agency over a period of time, which you and I have talked a lot about. I think the fact that they caught this, and that they acknowledged it, that they corrected it, and that we have new numbers to work with, at least that much is a good thing but there are bigger problems here. There are structural issues with this agency. One of the bigger challenges is we have these types of conversations after elections, unfortunately, far too often. There's a lot of energy, and seeming momentum towards making some changes until you get to the point of actually doing what needs to be done to reimagine this agency.

There is legislation that has been proposed by State Senator Liz Krueger and Assembly Member Nily Rozic that would make some changes that could help professionalize the agency, really delineating the powers between what the commissioners are deciding versus what a new co-executive director structure would decide, and who gets to appoint those executive directors and the accountability there. Also, ensuring that these people who are working at the agency are required to be trained in election administration.

We often talk about this being something of a patronage mill, where a lot of people are able to get positions because of their political connections, the role of the county party leaders/party bosses in picking commissioners, who then, in theory, could be disproved, have to go through approval from the city council, but it feels like a pretty de facto approval. Ultimately, to really overhaul the agency, you would have to get into reform of the state constitution.

We had an opportunity to do reform through a constitutional convention in 2017. A lot of the same people who are supporting and are advocates of rank choice voting are people who were concerned about the constitutional convention because of the views that that process could get overtaken by people who would try to take away workers rights and other protections for the environment that currently exist in the state constitution. The flip side of that is that was a path that is now closed for a certain number of years.

Then the other way to change the constitution is through the legislature, but that requires passage through two legislative sessions and then a voter referendum. That is a lengthier process, but it's one that if there is political will and energy to actually see this change, that is the path to do it.

Brian: You certainly can see why an agency charged with doing something as complicated and important as running elections probably shouldn't be left to patronage appointees. It's like if you needed a plumber to fix the leak in your shower, and instead of hiring somebody who's a plumber for a living, you hire somebody because he's your landlord's brother-in-law, so he gets the call. Maybe that's an analogy for where we are. On the mistake and release of sample ballot results as real results on Tuesday, who are the human beings who made this mistake? Can we name names?

Brigid: I don't think we can name individual names at this point. The board I think probably has identified the individuals involved, and it sounds like it was this, just the most poorly timed human error to not have reset the cast vote record in the tabulation system to be able to do this rank choice tally without these dummy votes in the system. I think there will be a question going forward about the accountability here.

It's one of these things where I think a little bit of everything that we're saying is right, Brian, you don't want people who are not trained elections professionals to be the only people overseeing these elections. At the same time, there are people who are working at this agency now who are working very hard, they're working tremendous hours, seven days a week, to try and get this count done, and I think we want to acknowledge that work and that some of these people are very good at what they're doing, but the problem is there is a lack of, probably overall oversight, and the challenge associated with decisions being made by this bipartisan 10-headed board that make things extremely challenging.

The fact that the accountability for when people do make a really significant mistake, falls to these people who have political ties. I think going forward it is a very fair question to get to the bottom of what happened, who was responsible and what's the accountability. I think for now, the effort is going to be focused on let's get through the end of this election.

Brian: Right, and then longer term something has to be done. Listeners, some of you may remember when Brigid famously uncovered a case in Brooklyn a few years ago, of thousands of people mistakenly being taken off the voter rolls before a major election, that caused new scrutiny of the Board of Elections. There was the case a few months ago, was it in the presidential primary? We talked about this on the show this week, where the Board of Elections mistakenly sent absentee ballots with the wrong envelopes, so it seemed like they were coming from elsewhere. That was a big snafu involving 100,000 voters.

Our colleague, David Cruz has an article on Gothamist called Rank Choice Voting Software Company Says, Board of Elections Ignored Offer to Help Carry Out Citywide Election. This is going to be the last of it for today, but can you describe at all what happened there?

Brigid: Yes. That is an instance where the software company that made the universal rank choice voting tabulator had extended an offer to the City Board of Elections to try and help get them ready for this first citywide primary with rank choice voting, and really one of the largest tests of the system in the country, and wanted to try to make sure that their employees at the board were trained, that they could potentially run a parallel count. A series of safeguards that, in 20/20 hindsight, probably could have spotted what had happened in this particular instant.

The board reportedly did not respond to those emails, voicemails, and offers of assistance from the company. I can tell you that what was happening at the same time was they were running special elections in other parts of the city. The State Board of Elections was doing a pretty comprehensive test of this software so that it could be certified in time for this citywide primary. That is by no means an excuse, but goes to explain some of what was happening there.

It has been reported there, the agency is dealing with some changes in personnel. Their executive director is currently on medical leave, and the deputy executive director has been essentially running the agency for the past several months, and she has stepped in, Dawn Sandow. She has stepped in as the executive director previously during leadership changes at the agency. There's, I think going to be a lot of re-examining of the agency, the State Senate has vowed to hold hearings about this election.

The State Senate, since the Democrats took majority control, has done probably the most work to pass election reforms. That's where we finally saw early voting, and automatic voter registration, and some of these changes to our absentee ballot laws get the support they needed by getting pushed through the Senate, along with support in the Assembly. There should be more that we learn this summer and into the fall about what actually happened here, how this agency could potentially be changed, and then ultimately, it really will fall on state lawmakers to make some of these changes since this is an agency that is ultimately governed by state election law.

Brian: Well, the State Senate majority leader, Andrea Stewart-Cousins said yesterday, the Board of Elections is an embarrassment and makes New York and embarrassment when we should be a model of running good elections in the United States, so hopefully, something will be done. Brigid, I guess you told us you'll be covering Maya Wiley's first press conference since the election coming up in a little while, so we'll be listening for what she says later in the day. You're reporting on that, and I have a feeling we will talk again before too long right here.

Brigid: I think we will, and we've got our whole elections team out there doing it. Actually, Liz Kim's going to be there with Maya Wiley today, but we will bring you the latest.

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