Nassau's Senator Craig Johnson will have his case heard Monday by the Court of Appeals.
New York’s top court will hear a Democratic state senator’s challenge Monday to the vote tally showing he lost his seat on Long Island and consider his request to have all district ballots recounted from the state’s new voting machines.
The Court of Appeals is expected to rule within days after arguments in the appeal of Sen. Craig Johnson of Nassau County. That will establish case law for recounts from the machines that scan voters’ paper ballots, unlike the old machines where voters pulled levers.
The legal clash has potentially huge political impact. An eventual win by Johnson, although unlikely, would throw the Senate into a 31-seat tie for power.
A midlevel court ruled Johnson is not entitled to a full hand recount. A judge earlier certified Republican newcomer Jack Martins as the winner by 451 votes.
That would switch the Senate to a 32-30 Republican majority in January after two years of Democratic control, with major implications for staffing and legislation.
Both Johnson and Jay Jacobs, chairman of the Nassau County Democratic Committee, are challenging the judge’s vote certification and seeking the first full recount from the machines that New York began using statewide only this year.
The Appellate Division panel concluded Wednesday that the information so far didn’t “indicate any degree of aberration” in the initial review of paper absentee and affidavit ballots, as well as an audit of 3 percent of machine votes.
“Given the limited number of discrepancies which were not resolved by both Republican and Democratic commissioners and given the number of votes separating the candidates, an additional manual audit pursuant to election law was not warranted,” the court ruled.
However, the four justices also said the case raised questions of law that the Court of Appeals should review.
The federal law that mandated New York’s change to the new machines, creating a paper trail of every vote cast, grew from the disputed 2000 presidential election and recount in Florida, which led to the U.S. Supreme Court’s 5-4 ruling that ultimately decided George Bush beat Al Gore.
“There’s some legal implications here that are wide-ranging for state Senate, congressional and even presidential elections. … It’s about the most fundamental right that New Yorkers are entitled to having their vote counted accurately,” said Austin Shafran, spokesman for Senate Democrats. “When you have such a close margin and you have the ability to literally pull out 84,000 pieces of paper and lay them on the desk and count them, what’s a week in the course of a 104-week (Senate) session?
“Getting a decision by Court of Appeals, to count all votes or not count all the votes, is something that will be used as precedent in future cases,” added Shafran, saying machine audits did show discrepancies. “It’s also something to be used as a motivating factor for the Legislature to modify or correct any insufficiencies in the law.”
Senate Republican spokesman Scott Rief said two courts have ruled that Martins won, already establishing the legal precedent, and it’s time to move on. He said Johnson should now do the right thing and allow for an orderly transition.
Rief added that there were just some minor issues with the machines found in the audit that were already resolved in court.
“There’s no basis for a hand recount of 85,000-plus ballots that have already been counted,” he said.
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