In a nondescript three-story white building surrounded by brownstones near the Brooklyn Bridge lies the New York State Second Appellate Division Courthouse. There was only , that of the ongoing saga between incumbent , D - Port Washington, and Mineola , R, I, C, and their 's seat in the Upper House of the Legislature.
A decision may be rendered by the court "perhaps by the end of this week," Martins attorney Peter Bee said on the white marble steps in front of Monroe Place. "They said they would do it quickly." 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. "We remain optimistic that the court will do the right thing and declare Mr. Martins the winner," Bee said.
The issues come down as to whether to carry out a full hand count of the 80,000-plus votes cast in the election, which Johnson campaign attorney Steven Schlesinger is seeking in a brief filed in the last week. In the , 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.
"I run a juggling act," Schlesinger said as he was walking out of the courthouse, adding that "I have no clue" as to when the court would issue a ruling, but also appeared confident a written decision would be released Friday. "I'm relatively confident I did well," he said.
The citizen advocacy group Common Cause has also joined the case, submitting a written request to the court asking for a full hand recount based on the as part of the County-wide audit. Supreme Court Judge Ira Warshawsky had ruled that there was an based on the margin of error and their explanations for ballot discrepancies provided by Republicans, who cited four in each instance.
In Mineola, Democrats stated in court that a full hand recount would only take about four days. Current estimates are that a full hand recount would take about one hour for each of the 259 voting machines in the 7th Senate district, or a little over 10 full days working around the clock.
Justices John Levinthal (Brooklyn), Mark Dillon (Westchester), Presiding Justice William Mastro (Staten Island) and Daniel Angiolillo (Westchester) comprised the four judge panel which would issue the ruling as to whether to uphold the lower court's decision or overturn it in favor of Johnson's request for a full hand count.
Wednesday morning Bee made the case that there was a difference between an audit and a recanvas until a slight mistake where he used the two interchangeably and quickly backpedaling, saying that the two words are n fact different and should be given different meanings. An audit would only reveal whether the optical scan voting machines counted the dots in the ovals on the ballots, whereas if the oval was circled – signifying voter intent – then under the standards that are judged for hand canvassing, the votes should count, which is the Democrat's position.
"Its all been said 100 times before," Republican Board of Elections chair John Ryan said.
Bee had argued in the lower court that "the machine is the machine is the machine," making the point against a hand recount that if you give the exact same pile of ballots to two different groups if individuals, they are liable to come up with different results. "That's a very valid point," Nassau County Attorney John Ciampoli said, who is mounting a suit to declare the machines illegal in New York and bring back the original lever machines which had been in use for several decades.
"Because of this the question might also be 'how am I going to do when I get to Albany and I kick the plug out on all these machines, because, frankly, the machines are illegal, that's the crux of my case," Ciampoli said. "They certified machines that violate the text of the statute."
Statutes governing the new optical scan machines state that the machine may have no functionality in which it may be connected to the internet, wifi or receive radio transmissions, etc. "The machines in use in Nassau County and the machines in use in Suffolk County both have ethernet ports on them," Ciampoli said. "What is an ethernet port there for? To connect it to network or to the internet." The Nassau machines also have four USB ports while other machines have at least two, in which portable modems could be plugged in.
"Save the whales, save the levers," Ciampoli said.