As a mandatory audit of computerized voting machines neared the finish line this week, the possibility of a hand recount of all 85,000 ballots loomed in the bitterly contested 7th state Senate District race between Democratic incumbent Craig Johnson and Republican challenger Jack Martins with Martins maintaining a 320-vote lead.
Nassau County Supreme Court Justice Ira Warshawsky was apparently considering a recount when he summoned attorneys representing both candidates into a conference in his chambers during a continuation of the case brought by Johnson against the county board of elections on Monday.
Warshawsky referred to the “large synapse the court would have to bridge” to consider the only motion he said Johnson’s attorney Steven Schlesinger has made since the start of the hearing after Election Day results showed the race to be so close.
“The count has to continue diligently, forthwith,” Warshawsky declared upon returning to court after the conference. He instructed attorneys to reconvene with him by phone on Monday afternoon on “that other matter.”
Outside the court Schlesinger said a hand count in the case is “still possible,” but said little more.
In open court, he had said a full hand recount of ballots cast in the Johnson-Martins race could be done in five days.
A source said Warshawsky had discussed the logistics of hearing witnesses on the motion to conduct a hand recount. The amount of time a hand count would take was also discussed.
As the tabulation of contested absentee and affidavit ballots continued simultaneously with the 3 percent audit of machines, attorneys disagreed on the degree to which there were any problems with the tabulated results.
Democratic elections attorney Thomas Garry said the issuance of absentee ballots – approved by both party’s respective commissioners – confirmed the validity of those ballots, and he questioned the fact that some absentee ballots were being contested at the outset of the morning’s court session.
Schlesinger said that there were now nearly 3,900 undervotes in the race – ballots uncounted, but bearing some indication of the voters’ candidate preference – and said three machines had revealed discrepancies in the ballot count.
“You’d have to hand count the machines to count the ballots,” he said.
Garry said of six machines audited thus far in the 7th Senate District race, two had “failed,” yielding results one vote off from the number of ballots they contained.
While John Ryan, Republican elections attorney agreed with the number of machines, he took issue with Garry’s description.
“I don’t agree with the statement that the machines failed yet,” Ryan said.
Nassau County attorney John Ciampoli said results of the 3 percent statutory audit would be accompanied by a written report enumerating the reasons for the discrepancies between the machine and actual ballot counts.
Ciampoli said a discrepancy of one-tenth of 1 percent during the initial audit would trigger a second random audit of 5 percent of machines. Ryan said a failure of three machines would trigger a subsequent audit. Irregularities in a second audit would trigger a third audit of 12 percent of the machines – which could lead to a full audit if further discrepancies surfaced.
In the county-wide audit, 11 machines remain to be audited, including one in the 7th state Senate District voting, according to Ciampoli.
“Putting it in perspective, we have a deadline with the chief judge,” Schlesinger said, referring to the January 5 deadline recently imposed to fix a result in the Johnson-Martins race. “Do we try to beat the chief judge’s deadline or do we [go to court] to get my recount?”
Among the factors Warshawsky is apparently weighing is the amount of time that a sequence of additional machine audits could require versus the amount of time that a full hand recount would take, factoring in the time to hear both sides’ arguments in the case.
“I am concerned. It’s not moving quickly enough,” Warshawsky said.
But as arguments persisted over the potential impact of the undervotes and Schlesinger repeated his mantra that the Johnson-Martins margin is less than half of 1 percent of votes cast, Warshawsky expressed his concern about setting a precedent in the new computerized machine era.
“The key becomes, do we establish a precedent to hand-count any close race? The intent of the voter is what we really want there,” Warshawsky said
Schlesinger’s stated intention to question two voters in the instance of an absentee ballot with an allegedly incorrect address could prompt a compromise over the full hand count Republicans has so far resisted.
“It’s a very dangerous course he’s suggesting here,” said Ryan. “What does he want? Does he want the sheriff to drag some little old ladies down here to administer the oath?”
With results of the audit expected to be completed by Thursday, Warshawsky told attorneys from both sides to be available for a telephone conference that day.
