Phone calls that would prejudice potential witnesses were alleged Monday in state Supreme Court during the ongoing legal battle to decide the winner in the state’s 46th Senate District.
The margin between Assemblyman George Amedore, R-Rotterdam, and Democrat Cecilia Tkaczyk is down to 111 votes, with the outcome resting on the validity of almost 900 contested absentee and affidavit votes. Both sides met in Fonda before acting Supreme Court Judge Guy Tomlinson to decide how the legal fight would be waged.
It was determined, despite objections from Amedore attorney David Lewis, that the two sides will argue over contested ballots and then count the ones ruled valid. This process will start today with Schenectady and Montgomery counties, then move on to Albany, Greene and Ulster counties.
A vast majority of the 877 objections involve questions of residency in Greene and Ulster counties. Amedore’s legal team, which accounted for about three-quarters of the total objections, will argue that contested ballots shouldn’t be counted because the voters weren’t qualified, with reasons for disqualification including voters not voting from a proper residence, incorrectly filling out ballot applications and materials and inadequate records by the local boards of elections. Tkaczyk attorney Frank Hoare has maintained these objections are without merit and that most of the contested ballots should be counted.
This entire process, though, could be improperly influenced by calls being made to voters whose ballots are being contested, alleged Lewis. “We received notice on the weekend that absentee voters were getting calls informing them that George Amedore was challenging their ballot,” he said, adding that the voters were asked how they felt about Amedore opposing their right to vote.
Because one voter who received the phone call saved the number with their caller ID, Lewis tried to identify the person making the call by dialing the number. He said the attempt was a failure, as contact was made, but the person was evasive and wouldn’t identify himself.
While acknowledging that his own legal team has private investigators meeting with voters whose ballots are contested, Lewis said this phone call could prejudice potential witnesses against his client, as voters may be called to testify about their ballots. He added that it didn’t appear Hoare knew about the call, but said it most likely came from the Tkaczyk campaign and that they should stop because the calls were improper.
An animated Frank Hoare, Tkaczyk’s attorney, responded that their team has people reaching out to voters in a similar manner to Amedore’s team. “This is a perfectly legitimate part of the process,” he added.
A spokesman for the Tkaczyk campaign said their outreach efforts have solely been to ensure that voters have their voices heard and he was not familiar with any efforts similar to what Lewis outlined in court.
Tomlinson declined to use the phone number to mount his own investigation into the issue and the number was not supplied to the Tkaczyk campaign to do its own investigation. Lewis said it wasn’t clear how many voters have been contacted.
There was some good news for the Amedore campaign, though, with Tomlinson noting a willingness to hear arguments to the eligibility of voters based on their residency. The Tkaczyk campaign has been arguing, based on a 2009 case, that residency issues are not a valid reason to question a voter’s eligibility after they’ve already voted.
No matter how Tomlinson rules, it is likely that his decision will be appealed to the state Supreme Court Appellate Division and a winner won’t be known until 2013. Any delays could stall actions in the state Senate, where there isn’t a clear majority heading into the next legislative session and the winner of this race could determine control of the chamber.
Also during the day’s proceedings, it was revealed that the pool of contested ballots is bigger than initially thought, as Albany County has 10 more paper ballots. This brings the total number of contested ballots up to 887, although the Democratic elections commissioner in Albany County, Matt Clyne, said both county elections commissioners believe the ballots are invalid.
Attorneys for both campaigns had yet to review the ballots, which were discovered on Friday.