Appellate Court Moves 7th Senate Case to Court of Appeals

Final hearing on Johnson v. Martins set for Monday in Albany.

The New York State Second Department Appellate Court has unanimously kicked an appeal for a hand recount in the from incumbent , D - Port Washington, to the State Court of Appeals.

In its nine-page written decision issued late Thursday, the Court ordered that that both Johnson and now-former Mineola , R, I, C, can take their case to the Court of Appeals for a final determination. Martins was , holding a lead of 451 votes, with 42,942 ballots cast in his favor compared with 42,491 for Johnson. The outcome of the race has apparently placed the Republicans with a 32-30 majority in the State Senate when the Legislature is due back in session on Jan. 5. Martins in preparation of being seated in Albany next month.

According to directives issued by New York's State's Chief Administrative Judge Jonathan Lippman, a deadline of Dec. 20 was issued for all appeals processes to be carried out. Neither side made a motion for the Court of Appeals to hear the case , rather the Appellate Court made the motion itself. Arguments in the hearing are slated to begin at 11 a.m. on Monday at the Court of Appeals in Albany. The case theoretically could go to the U.S. Second Circuit Court of Appeals, but it is unlikely given the tight deadlines established by Justice Lippman.

The issues come down as to whether to carry out of the 80,000-plus votes cast in the election, which Johnson campaign attorney Steven Schlesinger is seeking in a brief .  

Several parties have joined in the fray on Johnson's side, including citizen advocacy group Common Cause who submitted a written request to the court asking for a full hand recount based on the discrepancies found in three of seven machines audited as part of the County-wide audit. In a statement, New York Common Cause Executive Director Susan Lerner said that the organization is "deeply disappointed that the Court has chosen the convenience of election administrators and expediency over an accurate vote count in the most recent ruling."  Supreme Court Judge Ira Warshawsky had ruled in Mineola that there was an "insufficient basis" for a hand recount based on the margin of error and their explanations for ballot discrepancies provided by Republicans, who cited four in each instance.

Green Party member and has also called for a full hand-recount on Johnson's behalf, saying in a statement that "he was suspicious how after the New York City Board of Elections reported they had 'lost' 200,000 votes on election night."

In a statement issued on Thursday, Johnson said that "this issue is bigger than one State Senate race. This is about every future race for every democratically elected office throughout New York," referring to the first use of the optical scan voting machines by voters. Thursday morning outside of the Appellate Courthouse, Martins campaign attorney Peter Bee said that his side remains "optimistic" about the court coming down in favor of his client.


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