FONDA – When control of the State Senate hung on the outcome of a couple of races not decided on Election Day 2010, including one in Buffalo, the incoming governor, Andrew M. Cuomo, issued an unusual request to the state’s chief judge to expedite the handling of legal wrangling over the vote counting.
Now, the control of the Senate once again hangs on a close race, this time in a new district in the eastern part of the state, but Cuomo and the state’s top judge have shown none of the same urgency to resolve the election. Instead, at a time when Democrats are accusing Republicans of purposely trying to delay final vote counting, the governor repeats that he is not interested in the political doings of the Senate and that he can work with whoever controls the chamber.
At this point, Republican George Amedore holds a slim but shrinking lead of 110 votes over Democrat Cecilia Tkacyzk, with 877 contested paper votes still to be counted in the 46th Senate District. Democrats believe they will win if all the remaining contested ballots are counted.
Democrats, some quite openly, have questioned Cuomo’s interest in having his own party take control of the Senate, since he has enjoyed two years of cozy relations with Senate Republicans.
They say the GOP is trying to keep things unsettled until the new session in January. If that is the case, the Democrats say, Republicans will retain their old majority and be able to hold a leadership vote; they also will be able to negotiate with four renegade Democrats who are flirting with forming their own coalition.
If the Democrats later win in the 46th District, the matter could end up in the courts, the Democrats claim.
A state judge in the Montgomery County Town of Fonda on Thursday tried to set an ambitious schedule to begin hearing trial evidence Tuesday in the contested vote. But lawyers say it could take weeks or months to decide the issue, based on past history.
That, say Senate Democrats, is by no accident. “They have tried to use any process to delay us. I would expect them to try to use the court process as well,” Sen. Michael Gianaris, D-Queens, said of GOP efforts that over the past week have seen Republican lawyers object to the counting of more than 600 of the 877 paper ballots that are outstanding and now subject to court review.
Lawyers for Republicans dismiss the Democratic claims and say they are merely following election law to ensure that only voters legally permitted to cast absentee and affidavit ballots did so. “It’s a claim. Democrats make it all the time ... The claim is bogus,” said David Lewis, a lawyer for the Senate Republicans.
Lewis said that in just one week, lawyers from both sides counted more than 8,000 paper ballots in the five counties in the new 46th District and that both sides are cooperating with the judge’s push for a quick resolution.
But in court Thursday, Lewis did raise a number of possible reasons the race’s outcome could be delayed, from having to verify the residences of voters whose paper ballots the GOP is contesting, to appeals the GOP might make if the judge permits certain ballots to be counted. Any appeals would slap a stay on opening ballots.
“I know people don’t like waiting ... but the truth of the matter is it is far better to get a real and accurate answer than just any answer,” Lewis said of the GOP legal strategy.
Acting State Supreme Court Justice Guy Tomlinson in Montgomery County made clear he is on a short timetable: He ordered both sides to sumbit legal paperwork by this afternoon and to be back in court Monday to argue their legal cases before starting a trial Tuesday on the ballot issues. That could include the testimony of handwriting experts to verify signatures, introduction of utility and cable TV bills to question a voter’s residence and appearances by voters to verify the signature on a ballot is theirs.
Some wonder why Cuomo isn’t intervening to resolve the unsettled race quickly as he did two years ago, but his administration declined to comment Thursday.
In mid-November 2010, Cuomo wrote to Chief Justice Jonathan Lippman of the Court of Appeals, the state’s highest court, that he was worried about taking office in January without knowing who controlled the Senate. He said the chamber faced chaos that could affect all New Yorkers and that such a state of “limbo ... is not only undesirable but also unacceptable.’’
The unusual request by an incoming governor was met with a swift response by Lippman, who said he was in “full agreement” with Cuomo and quickly ordered lower court judges to push through the election cases, including the one between Sen. Mark Grisanti, R-Buffalo, and then-Sen. Antoine Thompson, D-Buffalo, on an expedited basis. He guaranteed Cuomo the Court of Appeals would hear any such cases by Dec. 20 that year, ensuring that Senate control would be decided, as it was, when Cuomo took office.
Thursday, officials in Lippmann’s office noted that the 2010 expedited schedule came after Cuomo sought action. “At this point, we are following it closely to ensure the judicial process is conducted fairly and expeditiously,” Gary Spencer, a Lippmann spokesman, said of the 46th District case.