HAMBURG, N.Y. - Just after 11 p.m. Tuesday, Democrat Nate McMurray appeared to have conceded his hard fought congressional race against incumbent Rep. Chris Collins.
He thanked his supporters and told them not to be sad, and to be proud of an effort that had "come up a little bit short".
Two hours later, however, in the wee hours of Wednesday morning, McMurray had a change of heart, after realizing the unofficial tally showed him having lost by only 2,000 votes.
“It is so close that we have a duty to make sure every single vote is counted,” McMurray told 2 On Your Side, in saying he would seek a recount.
On Wednesday afternoon, McMurray admonished reporters that because he never said the word "concede" in his remarks Tuesday, he had in fact not conceded. "That was a term the media used, but which I never said."
He also clarified that he would not call for a recount, at least until after several other steps are taken to more officially determine the precise outcome of the race.
No Guarantee for a Recount
“A candidate cannot start a recount just by virtue of calling for one,” said former U.S. Attorney Dennis Vacco, who has some experience with the recount process, having undergone one when he narrowly lost his bid for reelection as NY State Attorney General twenty years ago.
Vacco notes that while in some states a re-count is automatically triggered when a race finishes tightly, New York is not one of those ‘automatic re-count’ states.
Instead, what will happen (as is the case under NY law for every election) is that the voting machines will be re-canvassed by the respective boards of election in each of the eight counties included in the 27th Congressional District.
“What that means is they go in and they compare the total number of votes on each machine, to the number of people who signed in to vote,” explained Vacco.
However, it is only in circumstances where inspectors find significant discrepancies that they may call for an audit of the voting, a precursor to an all-out ‘recount’.
“But it is really in the hands of the boards of election to do that,” Vacco said.
Unless a judge rules otherwise.
“A court can direct a re-count,” said Vacco, “so the only thing that Mr. McMurray can do to force a more substantial analysis is to file a lawsuit.”
Potential Legal Battle Looms
"We've got to lawyers involved for this type of battle," McMurray said on Wednesday. " I'm getting lawyers involved we were talking to people this morning."
The Democratic Congressional Campaign Committee has stated an intent to dispatch teams of lawyers all across the country to assist candidates in tight races like this one.
However, when asked if any had landed in the 27th district, McMurray replied, "We are in discussions to see if we can get some insight, but there's no pack of lawyers coming. We're working with our own lawyers."
McMurray, however, has a limited time to act because there is a December 15 deadline looming to certify the results of the 2018 election in New York State.
“He shouldn’t wait too long because he’d want to make sure to get a court involved as quickly as possible,” Vacco said.
What About Absentees?
Though a firm count is not available, an estimated 9-10,000 absentee ballots have yet to be counted in the race.
Historically, however, absentee votes tend to break roughly the same way as those cast at machines on Election Day, which means McMurray would have to buck the traditional odds and pick up perhaps three quarters of them, in order for those ballots to alter the outcome of the race.