The dispute over two potentially decisive ballots in the Malta town supervisor’s race went Monday to the Appellate Division of state Supreme Court, which is expected to rule on the case later this week.
Democrat Cynthia Young is asking the Third Department Appellate Division to order the counting of two votes for her that were invalidated by a lower court — two votes that would give her an upset win over incumbent Republican Paul Sausville.
Both contested absentee ballots have “no vote” written on the back, clearly in reference to one of the propositions that appeared on the back of the Nov. 5 ballot. One ballot also has letters that may be initials.
The markings shouldn’t automatically invalidate the ballots under state Election Law, Young’s attorney, Kathleen O’Keefe, argued.
“Voter intent is very clear,” O’Keefe told the judges. “It is really just disenfranchising these voters.”
Sausville’s attorney, James E. Walsh, said Election Law is clear, any extraneous marks made by a voter invalidate the ballot.
“There’s a bright line the court can buy,” Walsh said. “You put marks on the ballot, that’s it.”
The Appellate Division is expected to rule this week, since the court closes next week and remains closed until January. The next Malta supervisor — whoever wins — must take office Jan. 1.
State Supreme Court Judge Robert J. Chauvin ruled Nov. 21 that the two ballots shouldn’t be counted, leading to Young’s appeal.
As matters stand, incumbent Sausville has a one-vote victory in the race, 1,582 to 1,581. The four-term incumbent is in line to chair the Saratoga County Board of Supervisors in 2014 if he is re-elected.
O’Keefe acknowledged she is asking the court to overturn past election law precedents, but said the law forbidding marking a ballot dates back more than a century — to a time when a mark on a ballot might be used to identify a voter so he could claim payment from party bosses for having voted correctly.
In the modern age, with all voters now using paper ballots, the burden of proof should rest on anyone challenging the validity of the vote, she said — otherwise the vote should count.
Until the opening of the final absentee ballots Nov. 20, Young had held a narrow lead over Sausville.
Voting machine returns on election night put her ahead by 13 votes, but her lead eroded as absentee ballots were counted after the election.
In an indication of how much interest there is in the race, more than 30 people attended the court session. Town Board member Peter Klotz and former board members Cliff Lange and Donna Gizzi — all Republicans sympathetic to Young — were among them.
Young also attended, though Sausville did not.