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46th Senate District: The legal battle

By Lombardo David
Wednesday, November 28, 2012

The counting of ballots is done in the 46th Senate District, but the lawyers have not yet begun to fight.

After counting absentee and affidavit ballots from Albany, Greene, Montgomery, Schenectady and Ulster Counties, Republican Assemblyman George Amedore is up about 110 votes over Democrat Cecilia Tkaczyk. The race tightened on Tuesday when Tkaczyk netted about 810 votes in Ulster County, which cut into the lead Amedore built up with paper ballots in Montgomery, Greene and Schenectady counties.

Now the race will be decided by acting Montgomery County Supreme Court Judge Guy Tomlinson, who is overseeing this process and will likely determine how the almost 1,000 disputed ballots will be dealt with. On Thursday, lawyers for both candidates will meet with Tomlinson.

At this point it is impossible to gauge how Tomlinson will approach this process, except to say he will want to do it quickly. Control of the state Senate could depend on this race, and almost every order Tomlison has issued has been designed to keep up the pace. Whether he is a believer in strictly enforcing election laws, likes to give voters the benefit of the doubt or randomly determines the validity of objections is still up in the air.

This lack of certainty didn't stop an ebullient Gary Ginsburg, speaking on behalf of Tkaczyk, to predict repeatedly on Tuesday that the race should break in their favor now. "It is increasingly clear that Cecilia Tkaczyk will be the next states senator for the 46th Senate District," Ginsburg said in a statement close to midnight.

Why so confident?

Ginsburg believes that a majority of the ballots that were cast aside are for Tkaczyk. Equally important, he believes that a large portion of the disputed ballots will be counted.

His confidence stems from the fact that a vast majority of the laid aside ballots were disputed by Amedore's attorney. He described most of the objections as "frivolous," and said they will be rejected by Tomlinson and the votes will be counted. Ginsburg chose not to assess the credibility of the objections by Tkaczyk's attorneys.

"When those hundreds of legitimate votes are counted, the will of the voters to elect Cecilia will be evident," Ginsburg added.

Democratic voters were the most highly targeted demographic by Amedore's attorneys. These Democrats include the parents of U.S. Rep. Paul Tonko, D-Amsterdam, people likely to back the candidate their son endorsed. Their ballots were laid aside due to problems with their witness signatures.

In Ulster County, more than 520 ballots were laid aside. The Democrats think the objections from Amedore's attorneys were solely because they knew this area heavily supported Tkaczyk on Election Day and would likely repeat that support with paper ballots.

It could just be that the Amedore attorneys are sticklers for enforcing the law. Amedore spokesman Kris Thompson stressed that all the objections made by their legal team stemmed from case law. As a result, he expected their objections to all be validated and the questionable votes not counted.

If one assumes that maybe they did have partisan motives with their objections, it is worth looking at what they were trying to avoid, specifically in Ulster County, which Tkaczyk won with 61 percent of the vote on Election Day. Of the 520 ballots laid aside there, about 88 percent of the objections were from Amedore's attorneys. This percentage was even higher in the town of Woodstock, in Ulster Couty, where the Republicans accounted for more than 90 percent of the 97 objections.

The spike, if one assumes devilish motives, is likely due to the fact that Woodstock was Tkaczyk's best town on Election Day, when she won it with more than 80 percent of the vote. Tkaczyk almost won 80 percent of the paper ballots in Woodstock on Tuesday.

It's important to reiterate, though, that Amedore's attorneys have been making legal claims for all their objections. It is a sharp contrast to the recent counting of paper ballots in the 43rd Senate District Republican Primary, when one of the attorneys for Kathy Marchione declined to give a rationale for his objections at one point.

So it really could come down to Tomlinson and his approach to the law. Based on this proceeding so far, he has demonstrated a consistent pragmatic streak. If he continues this trend, it is possible he will overrule objections that stem from legal technicalities, like a husband and wife signing each other’s absentee ballot envelopes, past and present voter signatures not matching up or a voter’s status as an absentee voter being called into question.

It's also not clear whether Tomlinson will be actively involved in assessing each vote or whether he will set down broad guidelines.

Any decisions on the contested ballots from Tomlinson might not be the final word, as either side could appeal his rulings.

We are definitely closer to a winner, though, as the pool of remaining ballots continues to dwindle. As it continues to dwindle we move closer to a winner, as it is highly unlikely that a recount is in store for this race.

Follow @GazettePolitics on Twitter for updates on this race and follow @poozer87 on Twitter for a steady stream of consciousness about this race.

 

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