Hull’s attorneys arguing for full recount in Schenectady mayor's race

PHOTOGRAPHER: Kathleen Moore

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A small bathroom trash can fire may lead to the recount of all 9,000 ballots cast in the mayor’s race.

The fire forced a brief evacuation of Schenectady High School on Election Day. Poll workers carried the voting machines outside, set up in a parking lot, and let voting continue.

In court Monday, mayoral candidate Roger Hull’s team of three attorneys argued that the high school evacuation was grounds for a full recount.

Currently, Hull is 77 votes behind Acting Mayor Gary McCarthy, with 630 ballots left to count. Another 9,000 ballots were counted by machine on Election Day. It is those ballots that Hull’s team wants recounted by hand.

Hull’s attorney — and former mayoral candidate — Michael Cuevas said the results at the high school were questionable because the machines were moved.

“These are supposedly sensitive machines that have to be stored in climate-controlled rooms,” he said.

Attorney Michael Brockbank said the machines were also jostled during the move, which could have damaged their ability to read the ballots correctly. The ballots are now filled out with pens and then fed, by each voter, into a machine that tabulates the results.

Cuevas said the type of ballot-reading machine used by the county has been found to read some ballots incorrectly in other parts of the country.

He wants a full recount because of that. But he must first find some evidence that the machines made a mistake, so he’s focusing on the high school.

“If we take the first step and we audit the machines at the high school, we could demonstrate there should be a full recount,” Cuevas said after the court session.

State Supreme Court Judge Vincent Reilly wasn’t convinced. He focused on the Hull team’s report from a witness who saw a voter walk off with a ballot, rather than waiting to run it through the scanner machine.

Hull attorney James Walsh argued that indicated some voters were deprived of the right to vote, but Reilly said that had nothing to do with whether the machines worked. He added that he didn’t see it as deprivation, either.

“How were they deprived? They chose to walk away,” he said.

Attorney Kathleen O’Keefe, who is representing McCarthy, argued that there was no reason yet to do a full recount. She said the election commissioners should recanvass all the machines, as they always do, and audit two machines at random to make sure all the results were scanned in correctly.

A recanvass involves making sure the machine read the same number of ballots that were handed out to voters; an audit involves counting the ballots to make sure the machine read them correctly.

She said there’s no need to do a recount unless that process uncovers a problem. “In my opinion, this is putting the cart before the horse,” she said. “I don’t believe they have any factual basis this early.”

She added that it’s too costly and takes too much time to do a recount unless there’s clearly a problem with the machines — not just an evacuation.

“Elections are never perfect. There are always issues that happen on Election Day,” she said. “If every time you can make a point that something unusual happened, we go to a full machine recount, think about the time and cost.”

Reilly did not issue an immediate decision on whether to order a full recount or additional machine testing. He will take written arguments through Wednesday before announcing his decision.

In the meantime, the election commissioners are free to begin counting the 529 absentee ballots and 101 affidavits. But Hull’s team wanted 24 hours to study the absentee ballot applications — in which each voter says why they can’t vote at the polls — and the signatures on the outside of the ballot envelopes. Seeing that information in advance allows the attorneys to prepare their arguments for keeping some ballots uncounted.

The attorneys received copies of the applications and envelopes late Monday and agreed to start counting Wednesday morning.

In related news, Hull’s team said that Hull will return to Schenectady Monday night. He has been in New York City with his 100-year-old mother, who needed life-saving surgery. Hull was warned that she might not make it through the surgery alive, but she is now recovering well.