Schenectady residents won’t know who the next mayor is until Thursday at the earliest — and the ballot count could drag on for two more weeks.
That’s because attorneys for Alliance Party founder Roger Hull want to recount, by hand, all 9,114 ballots cast on Election Day. Those ballots were scanned into machines and counted automatically. A hand recount would take up to a week, and it won’t be done unless Supreme Court Judge Vincent Reilly orders it.
He has already rejected the request once but, in a hearing Monday, said he will consider it again on Thursday afternoon.
But, before the recount is decided, the attorneys still have to deal with 225 absentee and affidavit ballots, which they didn’t count because of various technicalities surrounding signature, date and other ballot requirements.
The attorneys for the candidates have decided not to open any ballots today.
They said Monday that they would open some ballots today, withdrawing their objections over technicalities.
However, they called the Board of Elections this morning and said they would not open any today.
They may agree to open some ballots Wednesday.
On Monday, one of Hull's attorneys, James Walsh, said, “We’re negotiating."
Each attorney objected to flaws in ballots cast by members of the other political party, and often attorneys will agree to give up an equal number of objections so that neither side gets an advantage.
Generally, the weakest objections are withdrawn, as are the most frivolous objections.
The attorneys made some objections that they openly said were simply filed because the other side filed similar objections. Those objections might not receive a warm welcome in court.
The attorneys also need to reduce the number of unopened ballots to a “more manageable” amount so as not to spend days arguing in court, Walsh said.
Even if each side spent just two minutes on its arguments for or against each ballot, it would take almost 14 hours simply to make the arguments for 225 ballots.
They had originally planned to discuss their objections on Black Friday or over the holiday weekend, but ended up only having a brief talk Sunday night, they said in court.
The election commissioners are facing the possibility that they won’t be able to certify the election by the state deadline, Dec. 5. They’re not worried about counting the last of the ballots; that can be done on time, even if Reilly rules on them Thursday night.
But a hand recount would take up to four days and require all of the Board of Elections staff. They might call in temporary workers as well to get it done as quickly as possible, Commissioner Art Brassard said.
McCarthy’s attorney, Kathleen O’Keefe, is staunchly opposed to the recount. She said McCarthy’s 62-vote lead is large enough that a recount won’t change the result of the election, and argued that it would be a waste of time and money for the county.
“It will be very costly and time-consuming,” she said. “We’re hesitant to burden the county with a full paper recount if it’s not necessary.”
She said election law allows just two reasons for a recount: tests must show the ballot-reading machines didn’t work correctly or that there was a substantial number of missing ballots.
The machines have passed many tests and there are less than 12 missing ballots — a common issue because some voters walk off in frustration if there’s a long line, Brassard said.
However, Hull’s attorneys are analyzing the number of machine-reported “under-votes” in the mayor’s race. The machine records an under-vote if it cannot discern any marks in the ovals for any of the candidates in the race.
Out of more than 9,000 ballots cast, 157 people did not record a vote for the mayor’s race, according to the machines. Walsh, one of Hull’s attorneys, told Reilly that the “discrepancies” might indicate a machine failure.
“It might be the machines didn’t read it,” he said. “If someone circled a candidate, that’s a pretty good intention, but the machine isn’t going to read that.”
The machine can only read marks in the ovals next to each candidate’s name.
But election Commissioner Brian Quail said under-votes are usually a deliberate choice, made by voters because they don’t like any of the candidates.
He noted that there were fewer under-votes for mayor than any other city race this year. The City Council race, by comparison, had 3,926 under-votes. In that case, voters chose fewer than the four candidates allowed. For county legislator in District 2 there were 1,708 under-votes.
He argued that having just 157 under-votes was not a cause for concern and was instead surprisingly low.
“There are under-votes and over-votes in every race, every time,” he said.
Just 11 voters chose both Hull and McCarthy, creating an over-vote. In those cases, the machine did not count the vote for either man.
But the machines told voters when they over-voted, and they had to press a button on the screen to either get their ballot back or cast the vote despite the error.
The same is not true for under-votes. The machine doesn’t say anything in those cases because the state Legislature was persuaded that under-votes are intentional, Quail said. No state requires ballot-reading machines to warn voters of under-votes, out of a concern that voters who chose not to vote in a race would have that choice made public.
“It would tell you what race is under-voted and that notice pops up on the screen,” Quail said. “You don’t want to compromise people’s privacy.”