Photo credit: Sean M. Gates | Nassau County board of election officials continue to count votes on Wednesday afternoon in Mineola. (Nov. 17, 2010)
Top state judges are concerned that conflicting rulings could be handed down in Nassau's disputed state Senate race and two other tight races, slowing the appeals process in cases that could determine who controls the state Senate for the next two years, sources said Wednesday. As the Nassau ballot count resumed Wednesday in Mineola, Democratic and Republican sources as well as a judicial source said potentially conflicting rulings could be handed down by three different judges in Westchester, Erie and Nassau counties.
Justice Anthony Marano, administrative judge of Nassau courts, made a surprise visit Tuesday to the Nassau Board of Elections and relayed concerns from the state's top judge, Justice Jonathan Lippman, chief judge of the state Court of Appeals, said the sources, who were not authorized to speak on the record.
Governor-elect Andrew Cuomo released a letter to Lippman later Wednesday urging the judge to act swiftly.
"I am firmly of the belief that if these cases are not fast-tracked - through appropriate scheduling orders and procedures - some or all of them may take months to resolve, and delays of that length could cripple the orderly operations of the Legislature," Cuomo wrote.
"Obviously, every vote must be counted accurately and fairly, but they must also be counted expeditiously," Cuomo wrote. "I make this request without regard to any political considerations and solely out of a desire to ensure that our state government is capable of addressing the grave problems that lay before us."
Cuomo signed with his unofficial title of governor-elect and his official title of attorney general.
State Sen. Dean Skelos (R-Rockville Centre,) the presumptive Senate leader if the GOP prevails, said he was aware of the judicial concerns. "I believe what Judge Lippman is going to do is set up a schedule so that all the results will be done by Jan. 1st," Skelos said.
There was no immediate comment from Lippman's and Marano's media offices.
In Nassau, Jack Martins, the Republican mayor of Mineola, continued to hold a slim lead in his bid to unseat incumbent Democrat Craig Johnson, who won office in a special election in the state's 7th Senate District in 2007.
The Martins-Johnson race is one of three races that will decide who controls the state Senate for the next two years.
State Sen. Suzi Oppenheimer (D-Mamaroneck) leads the GOP's Robert Cohen by 504 votes, and Republican Mark Grisanti leads State Sen. Antoine Thompson (D-Buffalo) by 598, according to unofficial returns.
Meanwhile, in Suffolk's 1st Congressional District, Republican challenger Randy Altschuler held a 356-vote lead over incumbent Democrat Tim Bishop as workers began sorting through some 11,000 paper ballots.
Republicans have seized firm control of the House of Representatives, so the Altschuler-Bishop race has no impact beyond the district.
Suffolk officials in Yaphank are about halfway through a state-mandated review of 3 percent of the new optical scan voting machines and have reported no errors so far. Nassau was to start its audit Wednesday.
This is the first year the new machines are being used, and the audits are meant to detect any problems. Democrats in upstate Erie County, site of the one the contested state races, said Tuesday that some of their machines had problems.
The portable memory sticks - also called flash drives - indicated that machine data was "not readable," said State Senate Democratic spokesman Austin Shafran. Republicans said that was "a lie," and the problem was "a security protection device [that] is being fixed by the vendor," State Senate Republican spokesman Scott Reif said.
The vendor is Election Systems & Software, which also manufactured the Nassau machines. Suffolk uses machines made by Dominion Sequoia Voting Systems.
There were 11,000 paper ballots to be tallied in Suffolk, and officials said the first batches they count would be from Southampton, which is within the Bishop district, and Smithtown, part of which is in the district.
Although workers had begun to count the ballots by early afternoon, Board of Elections officials said those partial results would not be released until the end of the day at the earliest.
Bishop had been ahead on election night, by 3,461 votes, but the initial phoned-in tally - not the machine tally - was wrong in 173 of 460 election districts, with 30 districts off by 10 or more votes for each. Four districts reported vote totals off by 100 or more votes for each.
Officials in both counties said they expected the count of paper ballots to continue into next week.With James T. Madore
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