Judge Orders That 161 Ballots Be Counted, Prepares Ruling On 1st District Race

On Wednesday afternoon, a State Supreme Court judge ruled that 161 paper ballots that were not scanned on Election Day for technical reasons should be counted, bolstering the lead of U.S. Representative Tim Bishop in the race against his challenger, Randy Altschuler.

At the hearing, which has held at Suffolk County Board of Elections headquarters in Yaphank, Mr. Altschuler’s attorney, Vincent J. Messina, argued that the ballots could have been tampered with because election workers did not handle them properly on Election Day, and thus should not be counted. But Justice Peter H. Mayer eventually sided with Mr. Bishop’s campaign, stating: “Actions by the board, ministerial actions or errors, should not be used to disenfranchise the voter, absent some objective evidence of fraud.”

Justice Mayer ordered that the ballots be counted, and granted Mr. Messina’s request that the ballots then be sealed in case they need to be reviewed again during a future appeal. The ballots gave Mr. Bishop a net gain of 12 votes, putting his lead at 259 votes, according to his spokesman, Jon Schneider.

The decision came after Justice Mayer reviewed the workings of the new voting machines, which were used for the first time this year, and how election workers handled the unscanned ballots. Attorneys for both campaigns agreed on the basic facts of what went wrong on Election Day.

The ballots, which the machines could not scan for whatever reason Election Day on November 2 in “a host” of election districts, were slipped into special slots in the machines. Election workers were supposed to attempt to feed the ballots into the machines later on Election Day, but some did not, instead putting them in plastic bags and sending them in locked suitcases to Board of Elections headquarters that night. The plastic bags were not officially sealed, as they should have been, the attorneys said. The suitcases were opened in the days following Election Day, and the ballots were set aside at Board of Elections headquarters, where they were guarded by Suffolk County Police.

Mr. Messina had told the judge that he had no reason to believe the ballots were tampered with, but said that a “chain of custody” could not be established, leaving open the possibility of fraud in the time before the suitcases were delivered to Board of Elections headquarters on Election Day.

Garrett W. Swenson, the attorney for Republican Board of Elections Commissioner Wayne T. Rogers, also argued that the unscanned ballots should not be counted, while John J. Leo, the attorney for Democratic Board of Elections Commissioner Anita S. Katz, argued that they should be counted.

Additionally, attorneys said that election workers discovered nine unscanned ballots that were left sitting inside the machines after Election Day, while the machines sat at a warehouse at Board of Elections headquarters. Those ballots were counted sometime before the hearing, with four votes going to Mr. Bishop, four going to Mr. Altschuler, and one going to neither candidate, the attorneys said. On Wednesday, election workers were continuing to search other machines for any more unscanned ballots that were overlooked.

Now that the 161 unscanned ballots have been counted, several hundred other contested ballots are all that remain in the race, which attorneys said is the last undecided congressional race in the country. The attorneys have agreed to drop certain challenges in recent days, and negotiations are expected to continue over which additional ones to drop.

Mr. Bishop’s campaign has more than 500 challenges outstanding, according to Mr. Bishop’s attorney, Thomas Garry, and Mr. Altschuler’s campaign has more than 1,000 challenges outstanding, according to Mr. Messina. About half of each campaign’s challenges are based on issues of voter residency, the attorneys said, adding that they were not immediately prepared to start arguing those matters because their teams were still compiling research on the voters in question. Mr. Messina told Justice Mayer that he would be prepared to begin arguing that issue on Monday.

In the meantime, the Board of Elections commissioners for both parties have ruled on several hundred contested ballots and have issued split decisions on most of them, according to the attorneys. Those split decisions will be passed on to Justice Mayer for rulings. The judge said on Wednesday that he would return to Board of Elections headquarters on Thursday morning to begin deciding on some ballots that were not contested on issues of voter residency.

During the hearing, Mr. Messina suggested that Mr. Altschuler may choose to concede at some point, saying, “We may reach certain mathematical conclusions.”