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Long haul likely in legal fight for state Senate seat

Thursday, November 29, 2012
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David Lewis, left, representing Assemblyman George Amedore, and Frank Hoare, attorney for candidate Cecilia Tkaczyk, listens during the ballot counting case for the 46th State Senate District at the Fonda Courthouse Thursday Nov. 29, 2012.
David Lewis, left, representing Assemblyman George Amedore, and Frank Hoare, attorney for candidate Cecilia Tkaczyk, listens during the ballot counting case for the 46th State Senate District at the Fonda Courthouse Thursday Nov. 29, 2012.

— The legal battle to decide who won the hotly contested 46th state Senate District has no end in sight.

Lawyers for Assemblyman George Amedore, R-Rotterdam, and Democrat Cecilia Tkaczyk appeared on Thursday in Fonda before Acting Montgomery County Supreme Court Judge Guy Tomlinson. He is to rule on how many of the 877 disputed ballots in this race will ultimately be counted.

So far about 125,000 votes have been counted since Election Day, with Amedore holding a lead of about 110 votes.

The remaining ballots were laid aside during the process of counting about 9,000 absentee and affidavit ballots in Albany, Greene, Montgomery, Schenectady and Ulster counties. Lawyers for both candidates objected to ballots on various legal grounds, ranging from minor mistakes, like a husband and wife signing each other’s absentee ballot envelopes, to the more significant problems such as voters registered in multiple counties.

More than two-thirds of the objections came from attorneys for Amedore, with almost 85 percent of the objected ballots coming from Ulster or Greene counties.

On Monday, lawyers for both candidates are scheduled to appear before Tomlinson to decide how to handle a variety of objections that have popped up. Tkaczyk attorney Frank Hoare said after court that there are eight or nine categories that encompass most objections, but a few are unique.

The counting of disputed ballots is scheduled to start on Tuesday.

Counting might not happen as planned, though, with Amedore attorney David Lewis strongly suggesting in court there will be delays. “It’s an inevitability that someone will likely wish to appeal,” he said of any decisions Tomlinson might make about what ballots should or shouldn’t be counted.

When it was suggested that any broad rulings from Tomlinson regarding ballots in specific counties could be applied everywhere in the district, Lewis added, “Your honor’s rulings won’t result in opening those ballots.”

As to when ballots might begin to be counted, Hoare said after the hearing that he wasn’t sure. “There is a lot at stake here,” he said, “so everybody will use the law to the fullest extent to protect their clients.”

His position, though, is that a majority of the disputed ballots came from people who had a right to vote and their votes should be counted.

A majority of the objections in 521 challenges in Ulster County and 217 challenges in Greene County are the result of residency challenges from Amedore’s attorneys. They alleged that these voters may be registered in multiple counties or don’t live where they’re registered to vote.

Hoare said he believed there is no basis for these objections, but wouldn’t accuse Amedore’s attorneys of voter suppression.

Senate Democrats have been alleging that the objections and the strategy from Amedore’s legal team have all been aimed at slowing down this process.

Despite recent talks about a power sharing agreement between the Senate Republican Conference and a breakaway conference of four Democratic senators, the winner of this race could ultimately determine control of the chamber. If Amedore wins, the Republicans would have the majority and if Tkaczyk wins the Democrats might be able to lure back their breakaway members to create a majority.

Amedore spokesman Kris Thompson has stressed that all the challenges are rooted in law and that they want a process that ensures all the legal votes are counted. Expanding on this, Lewis said after court, “I have a tremendous faith in the basis of those objections.”

He rejected the idea that their objections were on a partisan basis, as they challenged Republican voters too.

Lewis added that nothing could be inferred about how the disputed ballots might swing the race, based on who objected to them. He noted a previous state Senate race where the objections were split, but one side won 75 percent of the ballots.

The longest part of this process will be determining questions of voter residencies and whether voters are registered in multiple counties. The former requires supporting documents, like a pay stub or utility bill, and the latter will require information from the New York City Board of Elections, as Amedore’s attorneys argued that a number of Greene and Ulster county voters are also registered in New York City.

The process of getting information from that board appears to be lengthy. Lewis said they would have to file freedom of information requests. A government body has five business days to acknowledge an FOI request and another 20 business days to respond.

Both sides expect they can handle minor issues, like disputes over how ballots were filled out, in a faster manner.

Albany County Board of Elections Democratic Commissioner Matt Clyne added that he felt about a quarter of the 34 disputed ballots in Albany County probably wouldn’t require much legal debate, as they were signature mistakes.

However, Lewis said Clyne wasn’t in a position to make such statements and called it highly misleading.

 
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