Representatives of both First Congressional District candidates, the Suffolk County Board of Elections, Suffolk County Supreme Court, and various media organizations packed a room approximately 20' X 25' and made it a de facto courtroom for nearly three hours on Wednesday afternoon. In it, they heard the preliminary steps of judicial review of the remaining challenged ballots in the race, and the plans for the process moving forward to settle the last remaining Congressional race in the nation, between U.S. Rep. Tim Bishop, D - Southampton and Randy Altschuler, Republican challenger from St. James.
Following Wednesday's proceedings, Bishop leads by 259 votes, with nearly 1,700 challenges remaining. Altschuler holds approximately 1,150 challenges, and Bishop about 540.
After hearing where some challenges currently stand, taking a short break for an in-person tutorial on what happens with "spoiled" and "unscanned" ballots, and finding out what needs to be done to challenge other ballots, Hon. Peter Mayer ordered both sides back to the Board of Elections headquarters in Yaphank Thursday at 10 a.m. The judge will adjudicate over 350 challenged ballots, more than 300 of which belong to Altschuler.
As Wednesday nearly marked the one month anniversary of Election Day, Judge Mayer warned both sides that an effort must continue to be made on both sides to keep the process moving along, while maintaining the integrity of the election process.
"This requires every hour of the day from whenever you start," Judge Mayer said. "If you intuitively know something is not going to be able to meet the burden of proof for a challenge, throw it out ... and if there is any evidence of retardation of the process, that it's being slowed, the guilty party is not going to like it."
Entering a fourth week of post-Election Day ballot counting, the minutiae of the integrity of the election process is becoming ever more scrutinized. And being the first general election in Suffolk County to use electronic voting machines, exactly what each side can successfully challenge remains unprecedented.
"We've never seen anything like this," said Republican Board of Elections Commissioner Wayne Rogers.
At issue on Wednesday was 161 "emergency ballots," which went unscanned on and following Nov. 2 for a variety of reasons. One may have been, for example, a voting machine broke and the ballots were never properly scanned. The 162 ballots were tallied by both sides prior to stating their cases in front of Judge Mayer.
Vincent J. Messina, representing Altschuler, argued that those 162 ballots were not secured according to BOE policy during their transfer on Election Night from their respective election districts to BOE headquarters. Because the chain of custody did not involve sealing the ballots, as Messina argued was required, the court should not "place any reliance on the integrity of the ballots."
Thomas Garry, representing Bishop, argued that because no fraud surrounding the 162 ballots was ever proven, there is no reason to question the integrity of the ballots. Judge Mayer decided in favor or Garry, netting Bishop 12 votes.
More than half of Altschuler's challenges are based on the residency of absentee voters. Messina said he would be prepared to argue in favor of sustaining his residency challenges or dropping the challenge for every residency objection by Monday.