Court gives Steve Sessler 1-vote lead over Eric Schiener

Monroe judge orders 3 of 7 ballots to be counted in Livingston DA primary

By Les Bowen for Genesee Country Express and Hornell Evening Tribune
Sept. 28, 2012   |   Original source

Livingston County GOP candidate Steve Sessler is two votes closer to getting the party’s nomination for district attorney. He presently leads opponent Eric Schiener 1,881 to 1,880 as both candidates await the opening of the final ballot that could decide the race.

On election night Sessler led by 19 votes and after 187 absentee ballots were counted a week later, the two were tied. On Wednesday, the county Board of Elections confirmed a recount of ballots in Avon gave Schiener one additional vote.

Meanwhile, the candidates awaited the decision from Monroe County Supreme Court Justice John Ark about seven contested ballots. In his ruling released Friday morning, Ark ordered four ballots be set aside and not counted. Two ballots were in unsealed envelopes and two had marks below the candidates names, but not in the proper boxes.

Ark ruled that two other ballots with white-out in the space for Schiener and X’s for Sessler will be counted.

That means it all comes down to the contents of the final unopened ballot, cast by a poll worker, referred to in the ruling by the initials R.O., who lives in Mt. Morris and had been working in Dalton on the day of the primary election. Ark discarded the argument that R.O.’s application for an absentee ballot was late. In the ruling, Ark wrote, “R.O. sent in motion the delivery of the application the day before the election, but was inhibited by the 4:00 p.m. summer closing hours of the office and the advice of the election commissioners to come in the next day.”

The judge noted that in their instructions, the election commissioners had not completely followed procedures. But referring to a 2010 court of appeals case, Stewart vs. Chautauqua County Board of Elections, Ark wrote, “by calling the board of elections, and being told that he could come in the following day, R.O. substantially complied with the statutory directive. His ballot is to be counted.”

The Board of Elections will convene Monday morning to open the final ballot.

“The Board of Elections has done an amazing job of protecting the anonymity and secrecy of the ballots,” Schiener said in a phone interview Friday afternoon. “This has been a roller coaster ride.”

Sessler was not available for comment; however, a spokesman said Wednesday that the campaign had concerns about how ballots were handled and was questioning the recount of ballots in Avon. Sessler has said he intends to continue into the general election on the Conservative Party line regardless of whether he gets the Republican nomination.

Schiener said if he is not named the Republican nominee, he will drop out of the race.

If the primary election is still tied after all the votes are counted, the decision will go to the Livingston County Republican Committee to select a nominee.