Photo credit: Danielle Finkelstein (left); handout | Jack Martins and Craig Johnson.
With most absentee ballots counted in a close state Senate race in Nassau County, attention turned Monday to the reliability of the new optical scan voting machines used by many localities for the first time this year. Democratic incumbent Craig Johnson trailed Republican challenger Jack Martins by more than 400 votes in the Seventh Senate District as a court-appointed referee continued to work Monday to resolve questions about 170 remaining paper ballots.
Democratic attorneys said in State Supreme Court Monday before Justice Ira Warshawsky that problems had been detected with several machines, but Republican attorneys said all the problems should be explained by the time they report Thursday morning. That's when they report to Warshawsky in state Supreme Court in Mineola on the results of the state-mandated audit of 32 of the 1,071 machines.
County attorney John Ciampoli and Democratic attorney Thomas Garry said the judge would have to decide several issues involving the new machines, including what constitutes the "failure" of a machine. "What does failure mean?" the judge asked rhetorically. "Right. Right," Garry said.
Attorney Steven Schlesinger, representing Johnson, wants a hand count of all 85,000 ballots cast in the race, which the judge has rejected as premature. Attorney's for Martins have argued that the voters have spoken and a hand count of the machine vote is not necessary.
Suffolk County, which used Dominion Sequoia machines, reported no problems in its audit, finished last week. But Nassau's machines, and the machines used in two other close state Senate races, are made by other companies. Nassau uses Election Systems & Software, as does Erie County, which also reported problems with its machines.
Officials in Westchester County, site of the third close state Senate race, reported problems with its machines, made by ImageCast, according to the Westchester Journal News.
Justice Warshawsky reminded lawyers in the case that he and other judges handling election cases are under orders from the state's chief judge to finish by Dec. 6th, except for "extraordinary and unavoidable circumstances."
After a public court session, Warshawsky met privately in his chambers with lawyers in the case. After returning to the bench, he told Republican attorney John Ryan to report back to him by 4 p.m. on a matter they had discussed in chambers.
Ryan would not elaborate outside court. Court spokesman Daniel Bagnuola said later that the judge would not comment.
The three trial-level courts expected to rule on all three contested races will likely have their decisions reviewed by two Appellate Divisions, and their decisions, in turn, should be sent to the Court of Appeals by Dec. 20, Chief Judge Jonathan Lippman has ordered.
Lawyers involved in the case said the goal was to wrap up contested State Senate races before the upper house of the State Legislature reconvenes Jan. 5 so that whichever party prevailed had enough votes to form a majority.
Control of the Senate will depend on the outcome of the three close races: Martins-Johnson in Nassau, another in Westchester and one spanning Erie and Niagara Counties.
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