Attorneys expect Schenectady mayor's race to be determined in court (with video)

PHOTOGRAPHER: Kathleen Moore

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The mayor’s race is now a nail-biter, after a surprising end to the third day of counting.

Acting Mayor Gary McCarthy, the Democrat, is just 65 votes ahead of Alliance Party founder Roger Hull, with 186 ballots left to count. Attorneys expect to finish the counting Monday, but they are now predicting the race will be so close that a winner will be determined in court.

All week, both sides had been waiting for Friday, when they would open the 74 mail-in ballots that came from a pro-Democratic district of the city.

The number of ballots from that area was huge — more than five times as many as in most districts. And most were from a nursing home that typically votes Democratic, possibly giving McCarthy the win. But McCarthy didn’t do as well as expected at other city nursing homes, making Democrats worry that the 74 ballots might throw the race to Hull.

Both sides thought the district could decide the race.

“This is the district,” said Hull’s attorney, James Walsh.

After 22 objections, the remaining 52 ballots were slowly opened and counted.

McCarthy’s attorney, Kathleen O’Keefe, was stunned as the votes were tallied. Hull got exactly half of the votes. Holding his own in the district was a huge success — it gives him a far better chance of winning as the count goes on. “That is unbelievable,” O’Keefe said as her client failed to add to his lead. “Wow. Wow.”

Michael Cuevas, one of Hull’s attorneys, said the outlook seemed bright for Hull.

“It’s still in the ‘very doable’ range,” he said. “There’s still plenty of votes to count.”

O’Keefe said she thought McCarthy would end up winning — but with a result so close that it would have to be determined in court.

“I think ultimately we’re going to win. But we’ll have to go back to the judge,” she said.

Given the perceived importance of the district, both sides’ attorneys spent more than two hours painstakingly inspecting the mail-in ballot envelopes.

They checked signatures, debated whether each voter was legally allowed to vote by absentee ballot, and asked the Board of Elections workers to locate original documents supporting each voter’s claims.

They examined voter registration forms for any errors and looked up streets to make sure the voters were voting in the right district.

The attorneys even acknowledged that they were coming up with some frivolous objections. O’Keefe said at one point that she was objecting to the way in which a voter received her absentee ballot because Hull’s attorney had made the same objection to an earlier ballot.

Walsh, Hull’s attorney, responded with irritation, saying they were playing a game of tit-for-tat. When the election commissioners asked O’Keefe to describe her objection, Walsh said they should simply write down “tat.”

O’Keefe’s inspection took so long that Walsh walked away from the table in frustration at one point.

“We can just save a lot of time. You object to all the Republicans and I’ll object to all the Democrats and we can count the blanks,” he said, referring to the gamesmanship that had each side trying to invalidate ballots that might include votes for the other side. Blanks are voters who have not registered with a party.

Earlier in the count, jokes about simply invalidating every ballot were met with laughter. But on Friday afternoon, the mood was far more serious.

O’Keefe told Walsh she would take whatever time she needed to inspect the ballots.

“It takes time to go through 80 ballots in a district that’s difficult for my candidate. I am entitled to do that,” she said.

Finally, all the objections were recorded, including one by the commissioners. O’Keefe objected to 12 ballots she considered likely votes for Hull, and Walsh objected to 9 ballots that he thought would go to McCarthy.

In the end, state Supreme Court Judge Vincent Reilly likely will decide which ballot objections to uphold and which ballots should be opened and counted.

But first, the attorneys will both withdraw many of their objections, O’Keefe said. She plans to consider all of her objections this weekend and decide which ones won’t hold up in court. The ballots to which she and Walsh withdraw their objections will likely be opened and counted Monday.

The goal is to take only a small number of objections to Reilly, she said.

Right now, there are 145 objections filed without opening the ballot, mainly due to problems with the signature, the date or the application for an absentee ballot. There are also 10 ballots that were opened but not counted because of identifying marks inside. Six of those ballots are for Hull, with four for McCarthy.

Of the envelope objections, the election commissioners unanimously agreed on 27 — all for ballots with such severe flaws that they are unlikely to ever be opened. Most of the rest will likely be ordered opened in court.

In related news, Reilly decided Friday not to order a recount of the 9,000 ballots counted by machine on Election Night. A check of the machines found no indication of error, and he said there was no evidence to support a recount.

Hull’s team had asked for the recount, mainly on the grounds that the machines at Schenectady High School had been jostled and subjected to temperature changes during a brief evacuation of the polling place.