The state’s highest court ruled in the final disputed State Senate race and the decision means Republicans will once again control the Senate in January.
The Court of Appeals agreed with two lower court decisions and denied Democratic Senator Craig Johnson a recount in his race against GOP challenger Jack Martins. Johnson trailed Johnson by 451 votes.
The case is also important because it is the first time the State’s high court has had to issue a ruling on the recounting of ballots under the new optical scan voting machines, used statewide for the first time in November. Unlike the old levered machines, the new system includes a paper trail of individual ballots that could theoretically be counted one by one.
The court was asked to set the standard for when the ballots should be hand counted. Chief Judge Jonathan Lippman asked lawyers for both sides that question.
“What’s the test going forward, as to how you get a manual audit of all of the votes?” Lippman asked.
Steve Schlesinger, the attorney representing Democrat Johnson, wanted to use a standard set by New York City Board of Elections, which says if there is a discrepancy of less than one half of one percent between the two leading candidates, then there should be a hand recount.
“New York City looked at it objectively, before the election, not knowing whose ox was going to be gored,” said Schlesinger.
He says in the 7th district, there was just a four tenths of one percent difference between Martins and Johnson.
Peter Bee, who argued on behalf of GOP candidate Jack Martins, says an initial audit of 3 percent of the ballots cast in the 7th Senate district did not show enough errors to warrant a full recount.
When asked by Judge Lippman what he thought the standard should be for a recount, Bee said the threshold would have to be “massive operational failure” of the voting machines.
In the end, the court agreed with neither argument, but said the Supreme Court Judge Ira Warshawsky, who initially ruled against a full recount displayed proper judicial discretion. The unanimous decision also says the discrepancy rate found in the initial 3 percent samples were “significantly below the margin of victory,” and so there is no “substantial likelihood that the result of the election would be altered” by conducting a full recount. The judges say there is also no evidence that the voting discrepancies that did occur represent any “flagrant irregularity” in the election process.
A factor in the court’s decision may have been the lengthy time frame needed for a full recount, and the possibility of paralysis in the State Senate as the busy 2011 session begins. John Ciampoli, who runs the Nassau County Board of Elections, told the court that a recount would be a “major process”, and could have taken as much as 24 working days.
“And I have not factored in lunch, dinner or bathroom breaks,” said Ciampoli.
Susan Lerner, with the government reform group Common Cause, says there should have been recount, no matter how long it took. She says the whole purpose of the new voting system, which includes a paper record of each ballot, is to ensure that when there are disputes, every vote is counted.
“Ask any person on the street ‘should the votes be counted?’ they’re going to say yes, ” Lerner said.
Senator Johnson did not attend the court hearing, but challenger Martins did. He says he’s eager to move “forward.”
“Traditionally you have a two month transition period,” said Martins. “Our transition period has been reduced to two weeks.”
In a statement, soon-to-be Senate Majority Leader Dean Skelos said there are a “myriad of challenges that need to be solved” in the New Year, and it’s time to get to work.
The defeated Senator Craig Johnson issued a statement saying “I congratulate Senator elect Martins on his victory and wish him the best.”