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Johnson Loses Appeal in 7th State Senate Race

Senator-elect Jack Martins, GOP secure 32-30 majority in New York State Senate.

The New York State Court of Appeals in Albany handed the State Senate back to Republican control Monday by ruling against a hand recount in the between , D - Port Washington, and , R, I, C. The unanimous 6-0 decision came down just before 5 p.m. Monday afternoon, validating the ruling of the , where Martins was first out of 80,000-plus cast. The final certified tallies had Martins winning with 42,942 ballots cast in his favor compared with 42,491 for Johnson.

The ruling brings to an end a where attorneys for both campaigns argued back and forth over the issue of a full hand recount of the race after during an audit of seven of the 249 machines used in the race. The discrepancies amounted to a net change of two additional votes in Johnson's favor.

"The State (regulations) don't address how you calculate the rate of error," Justice Victoria Graffeo said, asking  Martins campaign attorney Peter Bee how he proposed to calculate the rate. Justice Robert Smith posed the question of what if a candidate could pick up 50 votes, "wouldn't that suggest gee we maybe better look at the whole thing?"

Bee argued that "if it can be shown that the machine broke down, then you can look at the paper inside that machine, and that was done," adding that outside of the original seven. In its five-page decision, the Court of Appeals found that "there is no evidence that these discrepancies were the result of any misconduct."

Johnson campaign attorney Steven Schlesinger had argued before the various courts that the discrepancies amounted to an error rate in excess of that allowed under the law, requiring a full hand count. Supreme Court justice Ira Warshawsky "exercised his discretion... concluded he did not need expert testimony to do the math and wound up finding that an extra two or three votes in some number of the machines would not have altered the outcome and saw no productivity in a further audit," Bee said in front of the court.

"I sought a hand recount not only to verify this election, but also to establish a precedent for all future close elections," Johnson said in a statement issued shortly after the decision. "I thank the courts for their due consideration, but still believe that firm guidelines for such recounts are needed to uphold the democratic ideals that this government was founded upon."

The Second Department Appellate Court in Brooklyn on both parties' behalf.  It was the Court of Appeals' finding that "regulations recognize that some level of discrepancy is inevitable," and that in order for the Supreme Court to order a recount, "the record must demonstrate the existence of a material discrepancy likely to impact upon the result of the election, or flagrant irregularities in the election process."

Watching the entire procedures Monday morning was Martins, perhaps surveying the Albany environment in which he will now inhabit for the next 2 years. In a statement, the Senator-elect thanked the various courts "for their careful and through examination and the volunteers who carried out the hand count" as well as constituents "who with great faith in our system, waited patiently for the results.  Now it's time to focus on the transition so that we can begin working on the issues we committed to during the campaign: lowering taxes, cutting spending and getting New Yorkers back to work."

A call placed to Johnson's office revealed that Johnson was busy trying to get in touch with Martins to offer a concession and best wishes to the new Senator-elect. "I congratulate Senator-elect Martins on his victory and wish him the best as the next representative of the 7th State Senate District," Johnson said in a statement. "I am truly thankful to those who supported me throughout my 10 years of public service in Nassau County and Albany, during this hard fought campaign, and during this lengthy - but vitally important - recount process. While I regret not taking part in this next Senate session, I wish our new governor and his partners in the Legislature, including Jack Martins, the wisdom and judgment to directly address the many challenges facing this state."

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