http://www.newsday.com/columnists/other-columnists/appellate-judges-deny-johnson-martin-recount-1.2545833?qr=1
December 15, 2010 10:17 PM By DAN JANISON
dan.janison@newsday.com
Photo credit: NY State Senate | Craig Johnson will appeal a ruling that named
Jack Martins the winner of the 7th State Senate District.
How sure can you be that your vote will count?
That was the most meaningful question raised Wednesday as
lawyers and judges tangled over whether there must be a manual recount in the
7th Senate District - the last potential obstacle toward a GOP Senate majority.
But by Wednesday night, all four appellate judges - two
Democrats and two Republicans - who heard the case had upheld the Dec. 4 ruling
of State Supreme Court Justice Ira Warshawsky that a manual process wasn't
required under the laws of our new voting system.
"The appeal from the order," the appellate panel
said in an intricate 8-page decision, "is dismissed."
The panel paved the way for a further appeal by Sen. Craig
Johnson (D-Port Washington) - declared the loser by 451 votes - to the state's
highest court, the Court of Appeals. But it wasn't immediately clear whether
Johnson will do so or finally concede to Mineola's GOP Mayor Jack Martins.
It has been six weeks since Election Day and Inauguration
Day looms in less than three weeks.
This was the first key case of its kind taken up since those
new optical-scan ballot machines replaced lever devices in New York. It draws a
first legal line on when in the state's procedures paper ballots can or should
be checked against the results tabulated by the machines.
As a result, Wednesday's court session covered such workaday
matters as what distinguishes an "audit" from a "canvass,"
whether or when a court may or must overrule an election board, and the
mathematical possibility that the result here could change with further counting.
In a friend-of-the-court filing, Common Cause, a nonpartisan
good-government group, had come out on the side of ordering a recount, to
assure the voters that their verdict would be shielded from possible machine
errors. "There are quite a number of examples in which a voting machine
malfunction caused a candidate to receive the wrong number of votes," the
group's missive said.
On Martins' behalf, however, Mineola-based lawyer Peter Bee
successfully argued that Johnson's side hadn't met its burden of proof that the
outcome was flawed to justify a full manual canvass.
"At the end of the day we must balance accuracy with
finality," he told the judges. After the hearing, Bee added: "It took
three weeks to count 3,500 paper ballots. How long is it going to take for
85,000 paper ballots? . . . You can't count 85,000 pieces of paper twice in a
row and even get the same answer. There's going to be a variance. Human beings
aren't perfect."
For his part, Stephen Schlesinger, lawyer for Nassau
Democrats, Wednesday opened the court session in Brooklyn by ironically quoting
Soviet dictator Josef Stalin as saying those who vote decide nothing but those
who count votes decide everything.
Appellate Division Judge John M. Leventhal, first on a
four-member panel to quiz Schlesinger, made clear his own lack of immediate
interest in historic quips. Leventhal delved instantly into the here and now.
Schlesinger eventually told the panel: "The [State]
Legislature, by using loose language, left it up to you. They passed a law they
expected you to interpret."
Now such an interpretation has been issued. The panel said
4-0 that the courts have, under certain circumstances, the authority to order a
manual audit - but it "is not necessarily required" and "the
decision of whether to direct such an audit is left to the discretion of the
court."
Every valid vote ought to count. That said, it will remain tricky, and a matter of controversy, over how to balance human errors, machine errors and the desire for accuracy.