Thirty-two days after the 2010 election, the has in favor of Mineola , R, I, C, over incumbent , D - Port Washington. The decision in Judge Ira Warshawsky's courtroom Saturday afternoon reaffirmed and reestablishes the "Long Island Nine" – the voting block of Republican senators from Long Island in Albany – at least until the appeal. Martins campaign attorney Peter Bee confirmed in court that the final tallies were 42,942 ballots for Martins compared with 42,491 for Johnson, a difference of 451 in Martins' favor. If upheld by the appeals court, Republicans would regain control of the State Senate 32-30 when they reconvene Jan. 5, 2011.
A copy of the GOP audit report of the new electronic voting machines was submitted to the court Friday at about 5 p.m. The Democrats did not immediately submit a complete set of audits on the machines, at first omitting the machines taken out as part of the 3 percent audit of Nassau County as well as . There were no from Friday's recount of approximately 17 ballots ruled upon by A. Jeffrey Grobb.
Warshawsky said that while Democratic commissioner William Biamonte has determined that only one instance in the is reconcilable, Republicans have determined that all are reconcilable. "It is amazing how you stand gives you a view of what is reconcilable and what is irreconcilable," Warshawsky said, pointing out that "I can only work with" what the machine was supposed to do "within the parameters" of the programming.
It is the Democratic position that if the machine did not count the entirety of the ballots, the entire machine was marked as a failure. Bee said that "we are urging" that it is time for certification, arguing that "the statute commands" the court use the electronic results and not the hand count. Bee went on to say that the only time the paper ballots should be used is if the machine broke and even if the Republicans were "conceding every assumption" to Johnson campaign attorney Steven Schlesinger, it would only net Johnson two additional votes.
Schlesinger in turn cited the Federal Help America Vote Act (HAVA) where machines must meet standards of one error in 10 million or one in 500,000 at a minimum and argued that those standards take precedence as a basis for an expansion of the audit and a full hand recount of the race. However, it was said in court that the new regulations in New York governing the electronic voting machines were written taking their cues from HAVA. Republican Board of Election chair John Ryan said it was his understanding that "there will be no expansion of the audit. The audit is done."
Schlesinger petitioned the court to allow him to produce two witnesses, one a Berkeley professor who was reportedly an expert on statistics, probability and the electronic voting machines. Justice Warshawsky found it a bit humorous that the professor was in California and not in the state of New York. "We also have Mr. Schlesinger's bookie available," Democratic counselor Robert McDonald said dryly, causing a laugh.
Bee replied that he would oppose "turning today's hearing into a circus of the battle of the experts," saying that it was human error for the extra ballots in the machine. In the end, Judge Warshawsky said that he believed that the court would have to go with the State regulations.
There were approximately nine voting machines in 7th Senate district audited as part of the 3 percent audit of all machines used in Nassau County. Using the average under/overvote of 1.55 votes for Johnson, and not counting Ryan's citation of some votes for Martins, the math calculated that Johnson could have picked up as many as 110 more votes if the discrepancies were found on the remaining machines in the 7th Senate district. Again, Bee argued that some of the machines had more paper ballots than were on the electronic counters and "that's what this case comes down to."
Before adjourning for approximately 20 minutes for review, Warshawsky said that "each of you - Republican and Democrat - flip to the position depending on your needs."
After the recess, McDonald addressed the court saying that "we have reached the statistical level" of expanding the audit by 5 percent. "No one cares about the 5 percent audit," Warshawsky said, "they all care about Martins Johnson case."
It was Warshawsky's finding that "Democrats have automatically assumed (the count) is irreconcilable" while Republicans have given four reasons for each instance. Therefore, there was an "insufficient basis" to order a hand recount, and thus certifying the election in favor of Martins. "This court by its actions certifies the result," Warshawsky said, agreeing that "in one way or another its going to the Appellate." A request from Schlesinger for a stay in the motion until Wednesday in order to file an appeal was denied. The senior judicial administrator for the courts had set a deadline to issue a ruling in the case by Monday, and another deadline of Dec. 13 for completing the appeals process.
Outside of the courtroom, Martins said that he was "confident" in the job done by the Board of Elections.
"I think the judge today obviously undertook on his own a mathematical study of what was out there and the possibility of what could happen, notwithstanding Mr. Schlesinger's statistical experts and everything else, I think the judge hit the numbers on the head and certified the winner as we all knew he would be," Ryan said. "I assume Mr. Schlesigner is going to appeal - I would be shocked if he didn't - but I think based upon what the judge ruled it's going to be a tough one in terms of overcoming what it basically came down to in the end was simple math."
In a statement released Saturday afternoon, Johnson said that he would "be the first to congratulate Jack Martins if I was certain that each of the 85,000-plus votes in this race were counted and counted accurately." Johnson confirmed that he would take his request for a full hand recount to the Appellate court in Brooklyn as "what happens here could very well govern how all future close elections are decided."