Nassau County Supreme Court Justice Ira Warshawsky declared on Friday that he would not issue an order for a hand recount of ballots cast in the 7th state Senate District race between incumbent Democrat Craig Johnson and Republican challenger Jack Martins until a mandatory county-wide audit of 3 percent of the new electronic machines takes place.
“This court is not going to order any hand count at this time,” Warshawsky said.
Martins, the mayor of the Village of Mineola, maintained a margin of more than 400 votes in the race, with results fluctuating as 3,535 absentee ballots from the 260 election districts were being counted.
Democrats registered a slight edge over Republican absentee ballots, 1,495 to 1,428, with Conservative and Independence ballots at 75 apiece. A block of 467 ballots from uncommitted voters make up the balance, along with eight Liberal ballots, five Right to Life ballots, two Green Party ballots and one Working Families ballot.
Warshawsky said he also would not order a download of ballot records from the voting machines. He directed that the mandatory random 3 percent county audit begin before Nov. 17, the date originally scheduled, and suggested that a 3 percent audit of the machines in the 7th state Senate District be conducted as well. He further directed that the Nassau County Board of Elections continue counting absentee, affidavit and so-called emergency ballots – ballots that could not be recorded by the machines – in no particular order.
“Whatever you can agree to do that makes it easier for the staff,” he instructed attorneys for both candidates and the Democratic and Republican election commissioners.
GOP elections attorney John Ryan complained at the outset of the Friday morning proceeding that Democrat board of elections representatives were not fully cooperating and had not yet commenced the absentee ballot count that day. Nassau County attorney John Ciampoli suggested that the judge himself visit the board of elections and leave a representative of the court to monitor the process.
“They’re just supposed to do their job. They’re supposed to count the ballots,” a visibly annoyed Warshawsky said.
Thomas Garry, attorney for Democratic Elections Commissioner William Biamonte, assured the judge his side would “remedy” any problems in proceeding with the ballot count.
Attorney Steven Schlesinger, representing Johnson, said there were “significant discrepancies” in the numbers of ballots recorded by the machines and those issued to voters in half of the election districts in the 7th district polling places. Outside the chamber, he told reporters that the discrepancy represented approximately 100 ballots in those election districts.
But the “hundreds” of emergency ballots Schlesinger suggested might remain uncounted in machines were officially logged at 149 on Friday.
“This is the same thing the [Republican] party had in its playbook in Bush versus Gore,” Schlesinger said.
“I don’t believe that’s true,” Warshawsky said.
Attorney Peter Bee, representing Martins, said a private audit would put a “burden” on both sides, repeating his argument earlier in the week that a full recount was unjustified without evidence.
“This is a fishing expedition,” Bee said.
Schlesinger argued that he should be allowed to look for discrepancies through a full recount. But Warshawsky said there was no “material evidence” of irregularities, which would necessitate such a move. The statutory county-wide audit and the additional 3 percent audit of 7th state Senate District voting machines is intended to detect any anomalies in the votes recorded. Subsequent county-wide audits would follow if irregularities were revealed.
On site at the board of elections ballot counting, Biamonte said that process would take at least five more days.
With Warshawsky leaving for vacation in Hawaii, the next court date in case is Nov. 29. But the judge said he could be reached by either side by cell phone in the interim and could issue court orders in the interim.