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John Carl D'Annibale/For the Recorder Acting Montgomery County Supreme Court Justice Guy Tomlinson is shown Thursday during the ballot counting case for the 46th state Senate District in the Montgomery County Courthouse in Fonda.

John Carl D'Annibale/For the Recorder Acting Montgomery County Supreme Court Justice Guy Tomlinson, left, listens to David Lewis, center, representing Assemblyman George Amedore as attorney for candidate Cecilia Tkaczyk, Frank Hoare, at right, listens during the ballot counting case for the 46th State Senate District at the Montgomery County Courthouse in Fonda Thursday.


Senate court battle begins

Friday, November 30, 2012 - Updated: 6:49 PM


Recorder News Staff

FONDA -- Trial is set next week for attorneys to start battling over nearly 900 disputed ballots that will determine the winner of the new 46th state Senate District.

Democrat Cecilia Tkaczyk currently trails Republican George Amedore Jr. by 111 votes, and election commissioners from the five-county district reported Thursday there are cumulatively 877 objections laid aside "in the box."

The objections include unopened absentee ballots, and disputed absentee and affidavit ballots.

There are 74 objections from Schenectady County, and 31 in Montgomery County, which are both on tap to be reviewed Tuesday. Albany County's 34 items likely to be reviewed Wednesday.

Greene County, which has 217 disputed items, will follow, and lastly, Ulster County, where Tkaczyk was favored with 61 percent of votes on election night, has the most disputed items of 521.

Acting Montgomery County Supreme Court Justice Guy P. Tomlinson presided over a Thursday hearing, and determined he will hear oral arguments from attorneys on Monday before trial starts Tuesday.

It's hoped Monday's arguments, predicated on a memo due today detailing roughly 10 categories of objections, might reduce the need to painstakingly review the "universe" of all 900 ballots, said Amedore Attorney David Lewis.

"Instead of having to try them all, if a decision is reached in certain issues of fact, it will shorten the period of time needed to do this," he said.

Tomlinson will have to determine which categories are triable.

One of the categories might be a bit scrupulous, too. Lewis said objections including claims of mismatched signatures could require testimony from handwriting experts.

The attorneys need time to build their cases, Tkaczyk Attorney Frank Hoare said, which is why it was requested trial not start till Tuesday.

"This part of the process will determine the winner," he said. "We need time to prepare, and there will be a need for testing documents outside of what these Board of Elections can control."

There's no way to say how long the trial could last, Lewis noting he would not be prepared for Ulster County's objections by Wednesday.

He also indicated he was prepared to take the matter before the Court of Appeals if strict stipulations weren't adhered to in determining where, and how, disputed envelopes of unopened absentee ballots are unfastened and counted.

Election commissioners like Ulster County Republican Thomas F. Turco had hoped once a judgment was rendered on those ballots, they might be opened so results can finally be certified.

However, Lewis contended they can't be opened without the assumption the attorneys would want to review them, and he said they can't be opened in court. He said that invites problems, including the potential for court staff to become witnesses in the case.

"It will invite a problem rather than solve a problem," he warned, noting appeals courts have taken an interest in election law "after years of very little interest."

"Unless that's stipulated, we won't get a result here, it will be somewhere else," Lewis said.


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