By Anne Hayden
ALBANY COUNTY — Before next week, the long-contested race to represent the new 46th State Senate District will be over. The two candidates ran out of options yesterday when the state’s highest court declined to hear their appeals.
The legal battle started soon after Election Night, when both candidates declared victory in a race too close to call.
On Jan. 9, the state’s Appellate Division, Third Judicial Department, ruled that 99 ballots, of the several hundred that were earlier deemed invalid, should be opened and counted.
The Supreme Court decided, on Dec. 19, that numerous affidavit and absentee ballots would not be canvassed by the respective boards of election in the five counties represented in the district — Albany, Schenectady, Montgomery, Greene, and Ulster.
It determined that Republican George Amedore was the winner of the race, with 63,141 votes, to Democrat Cecilia Tkaczyk’s 63,104 votes.
Tkaczyk appealed that decision and the case went to the Appellate Division, the middle level in the state’s three-tiered system, which decided that 99 of the votes should be opened and counted, but Amedore appealed, sending the case up to the state’s Court of Appeals.
The Court of Appeals ordered a stay, requiring that the 99 ballots not be opened until it decided whether or not it would hear the case;
on Jan. 16, it denied the motion for leave to appeal and sent the case back to the Appellate Division.
“I’ve already contacted each of the counties to have someone come pick up the ballots,” said Matthew Leguire, in the clerk’s office of the Appellate Division. “They can pick them up as early as this afternoon,” he said on Jan. 16.
“We accept the Court of Appeals decision not to hear either side in this extended campaign for the 46th Senate seat,” said Amedore’s campaign manager, Kris Thompson, in a statement yesterday. “We anticipate the remaining 99 ballots will be opened this week. We look forward to the final counting and remain confident.”
Amedore, a developer from Rotterdam who has served in the State Assembly, ran in a district drawn by the then-Republican Senate.
Tkaczyk, a farmer who serves on the Duanesburg School Board, was making her first run for state office.
Originally, the race could have determined which party held the majority in the Senate, but a coalition was formed between the Republicans and four independent Democrats, and new rules have been adopted that would require an unlikely supermajority to change.
“We look forward to resolving the electoral process and counting the ballots ruled valid by the courts to ensure these New Yorkers have their voices heard,” said Gary Ginsburg, a spokesman for Tkaczyk’s campaign.
Four of the five judges in the Court of Appeals agreed that the case should not be heard, and one judge, Victoria Graffeo, dissented. The Court of Appeals hears only cases that set legal precedence.
“This case presents a significant issue of statutory interpretation that should be resolved by our court,” her opinion said. “This case involves a particular alternative voting method — the use of special ballots by poll workers.”
The law says that boards of election should provide special ballots to poll workers no more than two weeks before Election Day, and that the ballots must be returned by the close of Election Day.
In this particular case, special ballots were given to poll workers more than two weeks before the elections, and some were returned more than two weeks before Election Day. The Appellate Division decided that there was no violation of the law it and would allow those ballots to be opened.
“I appreciate that a violation of the Election Law is not dispositive of whether a vote will be counted and, if an error occurred in this case, it is attributable to the board of elections that distributed the special ballots,” said Graffeo, in her opinion. “Here, because the lower courts reached contrary conclusions regarding the proper interpretation of the Election Law, I believe further Appellate review is warranted.”
The Appellate Division decided that, although the Election Law directs a board of elections to provide the ballot within two weeks prior to Election Day, “it does not direct a voter to return the ballot within that period.”
“The clear language of the statute provides that the two-week time period applies only to the provision of the ballot and not its return by the voting election inspectors,” said the Appellate Division decision. “The voters did not violate any portion of the statute directed at them.”
Other ballots the Appellate Division decided should be opened included several to which Amedore had objected based on the residency of the voters, and the decision stated that he failed to “provide sufficient evidence to overcome the presumption that the individuals who cast ballots…resided where they were registered to vote.”
Two ballots to which Tkaczyk had objected based on the argument that the voters should have applied for special federal ballots will also be opened.