http://www.newsday.com/long-island/politics/spin-cycle-1.812042/nassau-election-it-s-almost-over-1.2529996?author=William+Murphy

Nassau election: it's almost over

Thursday December 9, 2010 12:55 PM By William Murphy

The broad Election Day court order that dealt with, among other things, the audit of the new optical scan voting machines used in Nassau County, sputtered toward some sort of end on Thursday when bickering Republican and Democratic forces entered into a stipulation.

Attorney John Ryan, representing the county Republican elections commissioner, read the stipulation to Justice Ira Warshawsky in state Supreme Court in Mineola. It said both the GOP and Democrats had found “discrepancies” during the state-mandated audit of a sample of 32 machines, or 3 percent of the total of 1,071 machines.

Attorney Bob McDonald, representing the Democratic elections commissioner, said he agreed to the stipulation.

Both parties said the audit would “continue,” but with no timetable to resume the audit. Also, they did not conclude that the machines had “failed,” a threshold in the state law that is not defined.

The state law mandates that if enough machines fail the initial audit of 3 percent, the audit would be expanded to an additional five percent of machines, which in Nassau’s case would be an additional 52 or so machines.

“The case seems to be over,” Warshawsky said, but he kept it on the calendar in case there are any developments in a companion case involving the appeal by state Sen. Craig Johnson (D-Port Washington) of his loss to Republican challenger Jack Martins by 451 votes.

Warshawsky had rejected a request by Johnson’s attorney, Steven Schlesinger, to hand count all 85,000 ballots in the race. Schlesinger argued that the new machines had missed a significant number of Johnson votes, but the judge said there was not sufficient evidence to warrant a hand count.

Schlesinger was scheduled to file his appeal with the Appellate Division in Brooklyn before court closes Thursday. Martins’s lawyers have until Monday to file a reply, and oral arguments are scheduled for Wednesday.

The stipulation will allow the Board of Elections to certify the other Nassau election results, Ryan told the judge. Ryan said outside court that there was no agreement on when to resume the audit, but it would not be within the next week.