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Supreme Court Certifies 7th Senate District Race

Jack Martins Declared Winner; Johnson Will Appeal

At first considered a long-shot, he won by a nose hair.

After all the counts, recounts, deliberations and court sessions, the 7th Senate District has a new senator. Mineola Mayor Jack Martins was declared the victor over incumbent Craig Johnson in the aftermath of the conundrum that was the 7th Senate District race last Saturday morning.

Judge Ira Warshawsky certified the vote on Saturday, Dec. 4, 12 days before the New York State deadline to come to a decision. The Republicans will attain the majority in the New York State Senate, 32-30, barring a successful appeal by Johnson when the Senate reconvenes on Jan. 5, 2011. Martins led by 451 votes.

After about three hours of deliberation, Warshawsky certified the election. “The court hereby certifies Jack M. Martins as the winner of race for State Senate in the 7th Senatorial District,” Warshawsky said in closing out the session.

Martins’ attorney Peter Bee confirmed in court that the final tallies were 42,942 ballots for Martins and 42,491 for Johnson. Warshawsky did not hide his disdain for the new voting machines. When Bee cited a certain case in his argument, Warshawsky said the case predates the machines when “reliable lever machines were used.” He stated later that the new machines were “forced on the state.”

Johnson’s attorney, Steve Schlesinger asked for a “stay” on Warshawsky’s decision until Dec. 8, but he was denied. Schlesinger said that he would consider filing an appeal. Johnson issued a statement Saturday evening saying that he will take the decision to the appellate division.

“One way or another, this is going to the appellate division,” Warshawsky said during the proceedings.

“I’d be the first to congratulate Jack Martins if I was certain that each of the 85,000-plus votes in this race were counted and counted accurately,” Johnson’s statement read.

Johnson has questioned the results since Nov. 2, hence the court order filed by Democratic Senatorial Campaign Committee (DSCC) on Election Day. The statement said that this race could make or break the usage of the new voting machines.

“The procedures governing these new voting machines are uncharted territory,” Johnson said in his statement. “What happens here could very well govern how all future close elections are decided. That is why I intend to take my request for a full hand recount to a higher court. I am prepared for any outcome of such a count. Voters need to have confidence that when their ballot is cast, it’s counted.

“That was why millions of dollars were spent on voting technology that had a paper trail. The legal precedent simply cannot be to ignore this vitally important protection.

“Frankly, this is bigger than me, bigger than Jack Martins, and bigger than who controls the State Senate. This is about preserving the principle of one man, one vote that our government was founded upon,” Johnson’s statement concluded.

Martins stated that he is anxious to get his work started in Albany and make do on his promises made during his campaign. Furthermore, he said that he hopes Johnson will work with him in a smooth changing of the guard.

“I’m looking forward to working with the governor-elect on his ambitious agenda,” Martins said outside the courtroom. “I think we’re in a great spot and look forward to working with Mr. Johnson in a smooth transition by the end of the year and hit the ground running.”

Concerning Johnson’s appeal, Martins said that it was inevitable. “I feel confident not only in the work that the board of elections did, but in the work of the attorneys as well as the judge in reaching this decision,” he said.


How Did We Get Here?

Although it seems like eons ago, Election Day was only 36 days ago. Lawyers for the Democratic and Republican county parties began deliberation in front of Judge Warshawsky on Nov. 10 after the DSCC filed an order on Election Day.

As recently as Nov. 23, a “court appointed referee” in A. Jeffrey Grobb was brought in to supervise the counting of the absentee and affidavit ballots. Grobb was appointed a week after the first court proceeding.

Grobb was appointed by Warshawsky to report back to the court each time the two parties were in Warshawsky’s chambers. Part of Grobb’s job was to try to decrease the number of disputed absentee ballots to more manageable levels to bring before the court, which had set deadlines in the appeals process.

The number of disputed ballots is representative of the 7th Senate District, as it comprises approximately 25 percent of Nassau County. During the 2009 election for County Executive for example, there were in excess of 4,000 disputed ballots, according to the Board of Elections.

The count of paper ballots concluded on Dec. 3. Lawyers in the hard-fought election finished their work shortly after 11 a.m. Referee Grobb showed up a few minutes later to find he was not needed because lawyers from both sides had no disagreements on the final batch.

Tuesday, Nov. 30 saw the judge ask attorneys in the case to think about the possibility of hand counting a sample of 20 election districts out of about 270 election districts in the 7th Senate District. Warshawsky originally opposed any hand recount, but reports surfaced suggesting otherwise.

With the 3 percent of Nassau County audit completed, the race could be certified. Thirty-two machines were selected at random throughout the county.

Democratic attorney Steve Schlesinger felt that incomplete affidavit ballots in question should not be counted and that at the hearing held by Grobb, “the board [of elections] personnel failure to look over and see the discretions calls for the ballots not to be counted.”

“How can you accept affidavit ballots that are not complete?” Warshawsky stated. “There are supposed to be signatures on both sides of the [affidavit] ballot. Mr. Grobb concluded that we can’t accept ballots that were not properly completed. I don’t think either side disagrees. One really has to wonder, as to why election workers would miss this?”

On Dec. 2, Warshawsky called for the Dec. 4 court date after hearing further arguments Thursday afternoon and evening and issuing rulings on affidavit and absentee ballots, which had originally been declared invalid. Warshawsky had given permission last Wednesday to examine 113 of 288 envelopes. Republican legal council John Ryan had brought 47 ballots into court as an exhibit.

In what was called “slightly comical,” Warshawsky revealed an affidavit ballot where a voter, confused by the process, wrote directions on the card to be turned over and upon turning over the ballot, a large question mark sat.

“I guess this person was too confused, as am I,” Warshawsky said.

Both parties submitted a preliminary report Thursday to Warshawsky on the audit of 32 of the county’s 1,071 voting machines. According to the report, election representatives found that a machine at the Mineola Historical Society failed because the audit of the paper ballots showed a difference of one or two votes from what the machine recorded in the race for governor.

The Republican elections supervisor found the Mineola machine passed, writing without further explanation that “five different ballots in question help to reconcile the discrepancies and the audit of the 7th Senate District race indicates one more vote for Martins on line B, while the machine counted it as an over vote.”

Warshawsky made final rulings Thursday on which of the contested 176 paper ballots remaining should be opened and counted or not. Ryan stated Thursday that he had a partial report and not one report signed by both parties. Democrats said that they sent over their report to Republicans.

Saturday saw the certification of the election. During the proceedings, Schlesinger asked the court to allow him to produce a witness, Berkeley professor Howard Stanislevic, who is an expert on electronic voting machines and would testify via phone.

Justice Warshawsky found it odd that the professor was in California and not in New York. Bee said he did not want to turn today’s hearing into a “battle of the experts.” In the end, Warshawsky said that he believed that the court would have to go with the State regulations.

A copy of the GOP audit report of the new electronic voting machines in the 7th Senate District was submitted to the court Friday at about 5 p.m. The Democrats did not immediately submit a complete set of audits on the machines, at first omitting the machines taken out as part of the 3 percent audit of Nassau County as well as a machine that had failed in Floral Park.

There were seven voting machines in the 7th Senate District audited as part of the 3 percent audit of all machines used in Nassau County, according to the report. Using the average under/overvote of 1.55 votes for Johnson tabulated by Warshawsky, Johnson could have picked up as many as 110 more votes if the discrepancies were found on the remaining machines in district.

Bee argued that some of the machines had more paper ballots than were on the electronic counters and “that’s what this case comes down to.”