The state’s top court on Monday rejected a Democratic state senator’s request for a full manual recount in his narrow loss to a Republican newcomer, a ruling that will return control of the Senate to the GOP.
The Court of Appeals unanimously upheld a judge’s certification that Sen. Craig Johnson lost to political newcomer Jack Martins by 451 votes out of almost 85,000 cast for the Long Island seat. A midlevel court last week upheld the win but said there were legal questions for review by the Court of Appeals.
Republicans will hold a 32-30 majority in January after two years of Democratic rule.
In its first ruling on the new voting machines used statewide this year, the court said initial audits of some machines found few discrepancies, and the law permitted the judge to direct a total recount where evidence shows “a substantial possibility” the outcome could change.
New York’s new machines have paper copies of every vote, and the Democrats wanted all recounted in hopes there were errors and Johnson won.
In arguments earlier Monday, Chief Judge Jonathan Lippman asked lawyers for both candidates what the threshold should be to determine when to order a full manual recount.
The machines scan paper ballots, which voters fill out, and compute the totals.
Steven Schlesinger, representing Johnson, argued there was “a substantial possibility” that the outcome could be reversed. An audit of 3 percent of the machines showed that almost half had errors like uncounted ballots, and there could be more and greater errors in the others.
Schlesinger argued that New York City’s rule calls for a recount when the victory margin is less than 0.5 percent, which it was in this case, although he acknowledged that Nassau County doesn’t have a similar rule.
“You know for a fact the machines didn’t read all the ballots,” Schlesinger said. He told reporters later that there were 259 voting machines used in the race, and one had a software glitch that transposed about 100 net votes in the governor’s race.
Peter Bee, representing Martins, argued that the initial audit changed only two or three votes to Johnson’s column and the initial judge properly used his discretion to certify the vote. The paper ballots are backups in case a voting machine breaks down, and ordering a full manual recount from every machine would require “a massive operational failure,” he said.
By MICHAEL VIRTANEN,Associated Press
Copyright 2010 The Associated Press.