After all but two absentee ballots were counted Wednesday morning in the Malta town supervisor race, incumbent Republican Paul Sausville had come from behind to take a one-vote lead over Democratic challenger Cynthia Young.
A state Supreme Court judge’s decision today on those two disputed votes may determine who the next supervisor is. Both contested ballots contain votes for Young, so if both are ordered to be counted, she would complete a one-vote victory. If only one ballot is counted, the race is a tie and the Town Board must appoint a supervisor. If neither ballot is counted, Sausville wins.
State Supreme Court Judge Robert Chauvin held a brief hearing on the ballots at the Saratoga County Courthouse at noon Wednesday and will announce his decision this afternoon.
The court proceeding was part of series of rapidly unfolding events Wednesday in the race, which has been too close to call since election night.
The race is being closely watched because the town, which generally votes Republican, is home to the GlobalFoundries computer chip plant, and the candidates’ attitudes toward anticipated growth were a major topic during the campaign. Also, Sausville is in line to lead the county Board of Supervisors next year, if re-elected.
Voting machine returns on election night put Young ahead by 13 votes, but her lead shrank to four votes when nearly 90 absentee ballots were opened and counted last week.
However, there were still 23 absentee ballots in dispute and unopened. On Wednesday, lawyers dropped their objections to 21 of them; when those ballots were opened and counted at the Saratoga County Board of Elections, Sausville was one vote ahead, the first time he’d held a lead in the race. The tally is currently 1,582 to 1,581.
The issue before the court is that on two ballots where votes were cast for Young, the words “no vote” were written on the back, quite clearly in connection with one of the six propositions that appeared on the back of the ballot. One voter also initialled the comment.
James Walsh of Schenectady, the lawyer for Sausville, said those markings should invalidate the entire ballot as a matter of law, because identifying marks are not supposed to be appear anywhere on a paper ballot.
“The Legislature has said any marking will invalidate a ballot,” he said.
Walsh noted instructions that come with the absentee ballot state clearly they should not be marked other than in casting a vote.
Kathleen O’Keefe of Greene County, the lawyer for Young, said the two voters’ intent to cast a vote for Young was clear, and the markings on the back of the ballot shouldn’t prevent those votes from being counted.
“They do not render the entire ballot invalid,” she said. “If you can discern voter intent, then those ballots should be counted.”
O’Keefe also said there is a constitutional argument, because voters going to the poll can ask for a new ballot if they make a mistake or change their mind about a vote, but those voting by absentee ballot can’t.
“It’s a basic equal protection distinction the court should take notice of,” O’Keefe told Chauvin.
Chauvin initially planned to rule after a brief adjournment following the oral arguments, but returned to the bench after about a half-hour to say he needed more time. He said he will issue a ruling at 1:30 p.m. today.
“A mark is one thing, and writing is another. It’s very concerning to the court,” the judge said before adjourning for the day.
In the event of a tie, O’Keefe said it’s likely the Malta Town Board would have to vote to fill the supervisor’s position as though it were vacant, with a special election to be held in November 2014.
The rest of the Town Board is Republican, though most of the board members have clashed with Sausville at times in the past.