Despite the introduction of referees to mediate the counting of absentee ballots, and a plethora of recounts, New York's 7th Senate District still does not have a winner between incumbent , D - Port Washington, and Mineola , R, I, C.
Just before the Thanksgiving recess the appointed in the race, and that number has now grown to two. Justice Ira Warshawsky, who is overseeing the case, explained in court Monday morning that A. Jeffrey Grobb will now be judging envelope challenges and signatures while Tom Seziale will oversee extraneous markings on ballots. Warshawsky explained that he would "rather have continuity" and not have two separate piles of ballots. It was estimated that election workers would finish their audit counting by end of business Monday or early Tuesday morning. More than in the race.
Johnson campaign attorney Steve Schlesinger said that despite the presence of the referees, the "threshold issue" remains the of the electronic voting machines. At last count, by 431 votes.
There are 3,876 reported undervotes - where no vote was cast in the specific race - and 43 overvotes. Uncounted ballots also exist in at least three machines. Republican Board of Election chair John Ryan told the court that the machines subjected to audit were hand counted and compared to their respective tape recording. Two machines were found to have one extra ballot, while one machine had two extra ballots. "The question then becomes how did it get there?" Ryan said.
"I'd like you all to agree on the numbers," Warshawsky said.
According to Nassau County attorney John Ciampoli, of the seven machines in the 7th Senate District subjected to audit, six are complete, but the Democrats contend that two have failed ballots. The two machines in question were used in polling places at in Port Washington and at the Mineola Historical Society. There are about 250 voting machines used in the 7th Senate District. Ciampoli said that a discrepancy must amount to one-tenth of 1 percent of the contest for an additional 5 percent to be added to the audit. Doing the math, Ryan clarified this to mean a failure of 3.2 to four machines. Schlesinger took the position that having only three machines fail should call for expansion of the audit.
Ciampoli argued that the words "failure" and "discrepancy" are not defined by the State statute governing the audits and recounts. "That would be the conundrum before this court," he said.
"Oh, I know what your out would be," Warshawsky said as Schlesinger rose to once again advocate for a hand recount, saying at the pace election workers were going, it could be completed in as little as four days. "Do we try to make the judge's deadline or do we wait for the audit and the trial" to see the hand count Schlesinger asked. Ryan would argue that due to the placement of the race for the 7th Senate District on the far right of the ballot, that there would be "falloff at the end of the ballot" from voters not filling in the appropriate circle.
When there is an undervote the electronic machine prompts the voter to decide if they want to retrieve the ballot and cast their vote in the appropriate race or submit the ballot "as is." Democratic counselor Tom Garry said that the 3 percent audit would be completed by Wednesday and a report would then be presented to the court Thursday.
"I am concerned that it's not moving quickly enough," Warshawsky said. "Do we now set a precedent of hand counting every race that's close?" Warshawsky also acknowledged in court that the case would be moving to the appellate division for appeals shortly.
Schlesinger is also challenging 137 absentee applications which he believes may not live at the addresses provided on the absentee ballots, and whom allegedly received their applications in pieces of Republican campaign literature and petitioned for workers to visit the individuals and investigate. Speaking outside of court, Schlesinger said that these individuals could have ended up casting two ballots, once at the polls and once via absentee. Ryan described the situation as "voter harassment and borders on disenfranchisement," adding that "there has never been an instance of such a thing happening."
Saying it was "sad" that New York state has such "arcane" election law, Warshawsky granted the application to issue a challenge oath to two voters, saying that the veracity ballots were to remain counted, and that the count has to continue. No specific date was given for when both sides are due back in court.