Too Close to Call

Senate Control in Doubt

As 3 Recounts Continue.

Chief Judge Sets Dec. 20

Deadline For Litigation.


"Just when you thought it was safe to go back in the water..." - Jaws 2 (1980)

Just when you thought the State Senate's inability to function could be resolved, seventeen days after the Nov. 2 election, we do not even know which party will organize the chamber.

So far, the Republicans have won 30 seats and the Democrats 29. Three seats remain undecided because the margin of the leader is very small, and absentee, military and emergency ballots have not been completely tallied.

In the State of Alaska, a count of write in ballots has been concluded and a United States Senator Lisa Murkowski declared elected. In the State of New York, we have no conclusive results in three separate senatorial districts, in Long Island, Westchester, and on the Niagara frontier.

In the Nassau district, Jack Martins, the Republican mayor of Mineola, declared victory for the second time since Election Day over Democratic incumbent Craig Johnson after the County Board of Elections concluded its count of all the absentee ballots with Martins ahead by 403 votes. Johnson, however, has complained of discrepancies in the ballots and has not conceded. The rivals are due back in State Supreme Court on November 29th.

In Westchester, 13-term incumbent Democrat Suzi Oppenheimer is currently in court against her Republican challenger Bob Cohen, a developer and contractor. According to the most recent count, Oppenheimer leads Cohen by 626 votes, as officials at the Board of Elections continue to count the 2400 emergency, absentee, and affidavit ballots.

Upstate, in an Erie-Niagara district, incumbent two-term Democrat Antoine Thompson trails Republican challenger Mark Grisanti, a lawyer. As of Wednesday, Grisanti's lead was 579 votes. When we called for today's numbers, Erie County Board of Elections Commissioner Dennis E. Ward informed us that he was at the very moment with representatives of the two candidates counting ballots and he didn't anticipate the counting to be completed for a week.

The First Congressional district race in Suffolk County between four-term Democrat incumbent Tim Bishop and challenger Randy Altschuler is similarly undecided and too close to call. The East Hampton Star reported on its website today that the lead changed hands twice with Bishop leading in the morning and Altschuler pulling ahead by 85 votes at the end of the afternoon's count. The contentious count will continue. Of over 180,000 total votes were cast, Bishop has contested 342 ballots and Altschuler has challenged 535, including those of Bishop's elderly parents who cast absentee ballots from Florida.

But that contest will not affect control of The House of Representatives. Imagine the angst!

Once the votes are counted, the lawyers for each side will proceed with the tedious business of challenging voters for the other candidate. Some handwritten votes are difficult to decipher, others may be marked outside the box, or otherwise be vulnerable to disqualification.

Some people who voted were probably not properly registered, or otherwise ineligible to vote in that place at that time. Although the standard may be to implement the intent of the voter, that intent may be difficult to determine. When a person has voted who was not entitled to do so, we are likely not to know for whom that person voted, or what effect the disqualification of such persons' votes would have on the result of the election.

Even where irregularities are discovered, they may or may not have been intentional. If they are unintentional, which is most often the case, it is difficult to find a remedy. To hold another election is expensive and time consuming. It is likely that the number of voters will be much lower in a special election, and the result less representative of the district. It is more practical to determine that the candidate who has received the most valid votes is the winner.

This process takes a lot of time, especially when many individual ballots are in dispute. The Senate was originally supposed to meet November 15, but a legislature cannot meet if its leadership is still undetermined. The next date suggested was November 29, the Monday after Thanksgiving Day, but it appears unlikely at this date (Nov. 19) that the winners in all three seats will have been determined by then.

After the various Commissioners of Elections determine the winners in the three disputed Senate contests, the losers have the right to appeal to the state courts, which will grant expedited hearings because of the immediacy of the disputes. Nonetheless, the judicial process is likely to take weeks.

Yesterday, Justice Jonathan Lippman, chief judge of the state Court of Appeals, set December 20 as the deadline to conclude all appeals, so that the contests will all be resolved before the Legislature convenes, with its new members, on January 5, four days after the inauguration of Governor Cuomo.

At this moment, the odds favor the Republicans in their effort to regain control of the State Senate. However, the process is definitely fluid and the outcome is by no means assured.

Democratic partisans will certainly be distressed to lose the Senate after finally regaining control in 2009 after 43 years in the wilderness of a legislative minority. However, the party should not be too surprised with the probable outcome of this election after two disastrous years in the majority that began with the "Four Amigos", continued through the Espada coup and Monserrate slashing and explusion, and ended with the Aqueduct racing scandal.

Not every Democrat is likely to mind a Republican Senate. In some ways, a Republican victory would be helpful to Governor-elect Andrew Cuomo, because he will have a foil in negotiations with Dean Skelos as Senate Majority Leader, while being freed of the burden of dealing with John Sampson, who, along with Senator Malcolm Smith, has been touched by the unfolding Aqueduct mess.

Of course, Cuomo must profess to desire Democratic control, but some political observers believe the GOP legislators' views may be closer to Cuomo's than those of the Working Family Democrats who support substantial tax increases. The new governor is aware of the reality of the state's fiscal situation and the 9 billion dollar deficit for FY 2012, with the budget due on March 31.

How he meets these challenges will determine the success of the new administration. Spitzer blew it in his first month by his intemperate language and his pursuit of Bruno. Paterson acknowledged ancient extramarital affairs on his first day in office. Cuomo will do better, but his task has been made more difficult by the failure of his predecessors to deal with the imminent financial crisis.