By HEATHER NELLIS
Recorder News Staff
FONDA -- Prejudicial intentions were alleged against Democrat Cecilia Tkaczyk's team during a Monday court hearing in reports of a Sunday phone call to someone whose absentee ballot was disputed in the state 46th Senate District election.
Tkaczyk's attorney countered that Republican George Amedore Jr.'s team strategy to subpoena for cable, utility and DMV documents is invasive, and shouldn't factor where voters choose to cast their ballots if they have multiple residences.
Trial will start this morning in determining the winner of the race, which may not occur before year's end if the matter heads to an appeals court. Amedore leads Tkaczyk by 111 votes, with 877 contested ballots -- mostly unopened -- to be tried.
Amedore's Attorney David Lewis notified acting Supreme Court Justice Guy P. Tomlinson in Monday's pre-trial hearing that "someone" called at least one voter Sunday evening, told them their ballot was disputed, and asked how they felt about "Amedore trying to stop their vote from being counted."
Lewis didn't say from where the voter hailed in the five county district, only that he received the information from a party chair the voter contacted. The voter reportedly logged the number in their caller ID, and passed it onto the party chair, who shared it with Lewis.
Lewis said he called the number but was "stonewalled" by someone who "claimed to be 'only in production.'"
Lewis doesn't believe the call was made by Frank Hoare, Tkaczyk's attorney, but believes it was someone from her team, he said. He warned the calls should stop because they could cause the voter to be prejudicial against Amedore if chosen as a witness.
In response, Hoare affirmed he had no knowledge of the call, but said his team has been reaching out to voters to search for witnesses, which he said was a normal process.
"I don't find running to people who cast affidavit ballots more invasive than pulling people's documents," Hoare said.
"That's not my quarrel," Lewis said. "My quarrel is someone is telling people that Amedore wants to stop people from voting. Subpoenaing records that are property of entities does not get noticed by voters."
Lewis asked Tomlinson to direct court staff to call the number to determine who was on the other end, but the judge declined.
"We don't want voters to draw the inference the court will do anything to reveal how they voted," he said.
Tomlinson expressed a continued effort to balance an expeditious trial while protecting voter privacy, prompting the opposing attorneys to reach an agreement Monday that would at least facilitate finality of the 4th Judicial District of State Supreme Court race, and the Minden town justice election.
Both races are still undecided, in part due to ballots under order because of the 46th Senate District race.
However, the attorneys could not agree on a procedure Monday.
Hoare and Attorney Kathleen O'Keefe wanted disputed ballots to be opened and counted for all relevant races after Tomlinson ruled on the envelopes.
Lewis, on the other hand, was only willing to let the two judge races be counted before resealing the ballots and handing them up to an appeals court to have their validity decided for the senate race.
About 30 of the 877 contested items are opened ballots, with the remainder unopened. Most of the disputed items were laid aside by Republicans in Ulster County, where Tkaczyk was favored on election night.
Lewis said the bulk of the objections deal with dual residency, as there is a tendency of New York City residents to have seasonal or second homes in Ulster County.
Lewis said the appeals court should determine whether the unopened ballots are opened and counted, while O'Keefe and Hoare contended Supreme Court should make that determination before an appeals court is involved.
In the absence of an agreement, Tomlinson decided he will hear arguments from both sides and he'll then make a ruling on the unopened envelopes.
In addition to questions of voter residence, ballot disputes include votes cast early by election inspectors, and absentee ballots stamped as received by election boards after the Nov. 5 postmark deadline.