Livingston Republican DA primary still in limbo

By Les Bowen for Genesee Country Express and Hornell Evening Tribune
Sept. 26, 2012   |   4:20 PM   |   Original source

The wait continues for Livingston County Republican candidates for district attorney Eric Schiener and Steve Sessler. The two have already waited two weeks since the primary election to find out who will get the Republican nomination in November’s general election, and they should have their answer in a few days.

Both candidates appeared Wednesday morning in Rochester before Monroe County Supreme Court Justice John Ark to make a case for or against seven uncounted ballots that could decide the primary race. With the news of a miscounted ballot in Avon, it seems Schiener leads with 1,880 votes to Sessler’s 1,879.

Of the seven ballots contested in court, four are questioned because of the way they were marked. Two arrived at the election office without being properly sealed. The seventh ballot is contested on the grounds that it was cast late.

The two ballots that arrived improperly sealed were both in sealed outer envelopes, but the inner envelopes containing the ballots were not sealed. Robert Shaddock, counsel for Schiener, argued that there was no evidence of ballot tampering and the ballots should be counted.

Four other ballots had inconsistent markings. One ballot has white correction fluid in the space for Schiener and an X for Sessler. Another ballot has the space for Sessler filled in and a checkmark below his name.

Two other ballots were marked in the wrong place have X’s below the names. But the ballots would cancel each other out if counted.

Sessler argued that all four ballots with questionable markings should be counted and that the marks are consistent with votes for other candidates on each ballot. He said the ballots in unsealed envelopes should not be counted.

“Those are the types of problems — difficulties — that are fundamental to the absentee ballot process,” Stivers said.

Board of Elections Commissioners Nancy Leven and Laura Schoonover had both agreed on election night that the two ballots in unsealed enveloped and the six ballots with inconsistent markings should be set aside and not counted.

Where the commissioner’s disagreed was the seventh ballot, cast by a poll worker who lives in Mt. Morris but was working all day in Dalton. He was unable to vote at his polling place.

Leven said she spoke with the poll worker the day before the election and both commissioners agreed to allow him to apply for an absentee ballot on Election Day before polls opened at noon. However, questions later about whether that was permissible forced election officials to set the ballot aside.

“He properly cast a ballot,” Schaddock argued, calling the issue a ministerial error. “There is no hint of fraud here. That ballot should be counted.”

Sessler countered that the law requires absentee ballot applications to be completed no later than the day before the election. He said counting the poll worker’s vote would disenfranchise voters who followed the rules and applied for an absentee ballot before the deadline.

“I claim that exhibit 1 (the poll worker’s ballot) should not even exist,” Sessler said, referring to the late application that he said election officials should have rejected.

“Out of pure application of the statute, you’re probably right,” Arks said. However, he brought up case law that ruled poll workers’ absentee ballots must be counted as long as they make an official statement to the board of elections stating they will not be able to vote at their regular polling place.

The judge made copies of ballots with inconsistent markings and the application from the poll worker. The originals along with the ballots from unsealed envelopes and the ballot from the poll worker were all returned to the county attorney David Morris to be returned to the Board of Elections.

Ark reserved decision. He said he would wait at least 24 hours before making a ruling.

“If I am not the Republican nominee, I will not go any further,” Schiener said following the hearing. He added that he hopes teachers and parents are using this year’s ballot count as a teaching opportunity. “This is the best civics lesson for my young kids ever,” he said.

Sessler reiterated his intent to continue on the Conservative Party Line regardless of the judge’s ruling. That means if Schiener gets the Republican line, both candidates will advance to the November general election against Democratic candidate and sitting District Attorney Greg McCaffrey.

When asked if he had concerns about splitting the GOP vote, Sessler responded, “We’re going to wait and see what happens here.”