Appellate judges deny Johnson-Martin recount


December 15, 2010 10:17 PM By DAN JANISON



Craig Johnson will appeal a ruling that named
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.