Absentee ballots in the contested race between Democratic incumbent Craig Johnson and Republican challenger Jack Martins in the 7th state Senate District are to be counted starting on Veterans Day, as Nassau County Supreme Court Justice Ira Warshawsky ordered both sides on Wednesday “to proceed with all deliberate speed” to complete the process of tabulating results.
Sources report there were approximately 3,600 absentee votes cast in the race, with Martins leading Johnson by a slim 415-vote margin based on initial returns.
Warshawsky told lawyers for the candidates and the respective parties’ county election commissioners to return to court on Friday morning with the canvas results from all of the election districts in the disputed race. The canvas consists of culling the number of votes counted by each electronic machine that recorded results from paper ballots to the number of paper ballots issued to voters at each polling station.
The judge also ordered that the Nassau County Board of Elections start reviewing and counting 724 affidavit ballots and the military ballots submitted, saying that he was counting on the attorneys to keep the names of those who voted confidential.
All emergency ballots – ballots that could not be recorded by the new electronic machines – were expected to be counted and recorded sometime Wednesday.
The intransigence of both sides in the case mirror the bare-knuckles battle between the candidates, with the state senate majority on the line.
Attorneys for the Democrats argued that informal canvassing of machines in some districts already showed irregularities, and a complete recount is the only solution.
“We can’t have a true count until we go into the ballot box to determine whether the count was accurate,” said Steven Schlesinger, Johnson’s attorney.
Republican attorneys said there wasn’t enough proof to warrant the full hand recount of the nearly 85,000 cast in the race.
Peter Bee, Martins’ attorney, said Johnson’s case “does not assert there were errors, but merely that there may have been errors.”
A visibly exasperated Warshawsky tried to encourage cooperation between both sides, saying, “I don’t see what delay does for anybody.”
The Johnson-Martins case is being heard in Warshawsky’s court because of a complaint he heard from 21st Assembly District resident Michael Montagne on Election Day that his vote wasn’t counted in the 13th election district due to an electronic machine breakdown. The judge ordered ballots from two machines in that election district – the one that broke down and the one that replaced it – to be counted.
Attorneys on both sides interjected arguments related to the separate Johnson-Martins case as the judge considered the Montagne issues.
Warshawsky assured Peter Bee, Martins’ attorney, that his decision on recounting the votes from the two machines did not represent a “template” for considering the Johnson-Martins case.
Bee said he planned to argue that the court had no jurisdiction to order a full recount, saying that the court could only rule if statewide standards had been “breached” or if there was evidence “that the wrong guy got elected.” Bee suggested alternatively, the Republican and Democratic election commissioners might simply agree to recount ballots from the 13th district machines.
Thomas Garry, representing Democratic county elections commissioner William Biamonte, said he would only agree to a recount of all 272 machines that recorded results in the 7th state Senate District.
“As far as this court is concerned, I have two election commissioners who can’t agree on auditing a machine that broke down. That’s intolerable,” Warshawsky said.
John Ryan, GOP elections attorney, said the Democrats were resisting counting absentee ballots until a recount was held. Garry pointed to the need for a full canvas of the election districts. Warshawsky ultimately endorsed both proceeding with the absentee verifications and count as well as the canvas.
A random statutory county-wide audit of 3 percent of the new machines, including at least one machine from each district, will proceed.
Garry pointed out that both sides had been arguing against the reliability of the electronic machines in a separate case prior to the election. He added that there were “massive amounts of problems” with the machines in the election prompting “a whole host of doubts as to whether Mr. Martins or Mr. Johnson won the election.”
“Doubt is in the mind of the beholder,” Ryan countered.
After the court session, Schlesinger said that an error of four votes counted, not counted or counted twice in each of the 272 election districts would represent more than 1,200 votes.
“No one’s tested this technology. No one’s tested this [software] program,” he said.
Last week, Martins said he expected to receive a slight edge in the absentee ballots and expressed confidence that the outcome of the race would not change.
William Biamonte, Nassau County Democratic Elections Commissioner, doesn’t understand why Republicans are resisting a recount if they’re confident they’ve won.
“We have an election that there’s a couple of hundred votes deciding this so it seems the only reasonable thing to do is to have a full recount,” Biamonte said. “It hurts nobody. There have enough problems, discrepancies more than enough issues to say that there should be a full number recount.”
BIamonte claims that 80 machines broke down in the seventh district polling places alone, aside from “hundreds” of other problems.
Ryan said the irregularities are “a creation in the mind of William Biamonte,” adding that there were no “systematic breakdowns of machines.”
Biamonte said a 3 percent count would leave a 97 percent chance of not finding anomalies in the results.
Ryan said the Democrats are hoping that there are many uncounted emergency ballots – ballots that could not be fed into the machines.
“These are new machines and we have no experience with the machines,” BIamonte said. “I think it’s a test of the whole system.”