Standing in third place by a razor-edge margin after the latest preliminary ranked-choice counting of votes, Maya Wiley on Thursday reiterated that she believed she still in contention to win the Democratic primary, but she added that her campaign had not yet decided whether to file a court petition that would preserve her right to challenge the final election results.
Speaking to reporters at City Hall Park, Wiley spoke of her candidacy as outperforming expectations. She called the race an “awe-inspiring, joyous, sad, challenging process.”
“The truth is we now stand with a wide open race,” she said.
Eric Adams currently leads the race overall, by 14,755 votes over Kathryn Garcia. She is followed by Wiley, who trails by fewer than 350 votes—a margin of a tenth of percent.
But with roughly 125,000 absentee ballots yet to be counted, the outcome is still far from certain. Another tally with some of those absentee votes is expected to be performed next Tuesday. But election officials have said that the final outcome will not be officially known until the week of July 12th.
Given how close and uncertain the race still is, some political experts were confused as to why Wiley had not yet filed a lawsuit to require a judge to review the ballots once they become official, which is considered a standard procedure.
“We’re talking about it and we’ll assess it,” she said. “We haven’t made a final decision.”
Under state election law, candidates have 10 days from the primary to file such a petition. The deadline is Friday.
Both Adams and Garcia have already filed such legal challenges.
“For candidates involved in close elections at this moment, it’s in their interests to run to court and file the petition in order to show cause as quickly as possible,” said Ali Najmi, an election attorney.
Time is of the essence because the petition must be signed by a judge and served to all the candidates by the end of Friday.
Najmi said he had already filed several lawsuits last week on behalf of City Council candidates.
There are other possible legal strategies beyond challenging the final results. The state’s election laws require a manual recount when the final results between two candidates are within a half a percentage point.
One possible legal strategy Wiley could elect to take is to argue that the Board of Elections should perform a manual recount rule of the votes during the last round in which she was eliminated since the margin was well within half a percentage point.
Jerry Goldfeder, an election attorney, wrote a letter last week to the Board of Elections alerting them about this problem and urged officials to have the same manual recount trigger apply during ranked-choice voting rounds.
“This will ensure the correctness of the BOE’s determination as to who should be eliminated, and, therefore, whose Number 2 votes should be attributed to the remaining candidates as we move to the next round,” he argued, adding that waiting until the last round before implementing the manual recount rule “may mean the wrong person is eliminated prematurely.”
Goldfeder said Wiley could still avail herself of the right to challenge the final results. He and other experts said they did not know why Wiley would not try to pursue both legal strategies.
As of late Thursday afternoon, the Wiley campaign was still going over their legal options.
Eric Koch, a spokesman for Wiley, said the campaign could file a lawsuit by tomorrow morning.