Livingston GOP nominees for DA remain deadlocked

By Les Bowen for Genesee Country Express and Hornell Evening Tribune
Oct. 3, 2012   |   Original source

The court’s decision comes nearly three weeks after the election and with just days before state and local ballots for deployed military personnel need to be mailed.

Steve Sessler announced he was suing Monday after the county Board of Elections announced a tie between the two primary challengers. He suggested an absentee ballot in an Avon district had been improperly counted and asked the court to re-canvass the ballots and enter the correct total.

However, in the courtroom, Christopher Thomas, counsel for Steve Sessler, argued that the candidates should return to a previous figure. He said the court should return to the count from Sept. 19. On that day, election officials, the candidates and other poll watchers observed as ballots were counted and inspected envelopes and absentee ballot applications. When absentee ballots were counted that day, candidates had an unofficial tie in the race at 1,879 votes each. In arguing to return to the Sept. 19 figures, Thomas effectively asked the judge to throw out his own decision from last week that gave Sessler two votes and opponent Eric Schiener one.

He said the race and the publicity it has garnered, “has many people wondering if this election is being stolen by party insiders.”

In questioning Board of Elections Commissioner Nancy Leven Thomas began by establishing her role within the county Republican Committee and her husband’s role as both chair of the North Dansville Republican Committee and as a member of the county’s executive committee.

“So your family is deeply involved in Republican politics in Livingston County?” Thomas asked Leven. Though she replied in the affirmative, the line of questioning was met with an objection from Schiener’s attorney, Robert Shaddock, who accused Thomas of making speeches.

“I was enraged,” Schiener later said in describing his reaction to the implication by Thomas of partisan-based vote tampering.

He said he considered himself to be the political outsider, having spent the last 12 years as assistant district attorney, while Sessler has run for judge positions both in the town of Livonia and the county level.

Initially, Thomas laid out a timeline in which the election commissioners and county attorney David Morris had handled the ballots in direct opposition to a court order that the ballots not be touched.

“It was done in secret,” Tomas argued. “They touched documents and things that they weren’t supposed to touch.”

That argument was later refuted as Leven testified the only ballots counted since Sept. 19 were the three the court had ordered to be counted.

She explained the numbers on the Sept 19 tally sheet did not add up, as there were eight votes cast in the Assembly race between Bill Nojay and Richard Burke. The tally marks on the sheet show two votes for Sessler and six for Schiener, but the figures reflecting the total number of votes reflect one vote fewer for Schiener.

Leven testified she realized the error on Sept. 21 when she was reconciling the absentee ballots totals and adding them to the ballots cast electronically at polling places.

“I was trying to create an Excel spreadsheet that afternoon, Leven told the court. “In transferring the numbers from this worksheet to the other worksheet, I realized they didn’t balance out.”

When she realized the error that Friday, she brought it to the attention of Schoonover and the two approached Morris the following Monday. Leven said she, Schoonover and Morris had counted the ballots on Sept. 24 to confirm there were eight, but they did not recount the votes.

She said it was the only discrepancy found in the absentee ballots and Morris told the commissioners he would inform the candidates, which he did immediately following the court proceedings on Sept. 26. Schoonover confirmed she remembers the course of events the same as Leven.

Thomas turned his arguments to the handling of the tally sheet, establishing there is a single lock on the board of elections safe and both commissioners and two deputy commissioner have keys. He also established Leven had handled the tally sheet without Schoonover present and suggested she could have altered the tally marks.

Thomas said any recount would be useless, describing it at “garbage in, garbage out.”

However, Leven later explained commissioners also record ballots when a voter selects no candidate, but there were none recorded for the district in question.

Ark had the commissioners recount the ballots in the courtroom, and the result matched the commissioners’ latest figures, including the miscounted ballot.

Thomas then turned his arguments to the absentee voter list, a line of questioning that went nowhere as Leven was able to explain any perceived discrepancies.

Ark ruled the tallies as set forth by the commissioners were valid and the vote remained tied. He further lifted a stay issued against the Livingston County GOP Committee barring selection of a nominee.

Sessler said in a press release issued Wednesday afternoon that he would not appeal the court’s decision.

Committee Chairman Lowell Conrad said the committee will meet Thursday at 7:30 p.m. in the Board of Supervisors room in Geneseo.

The Board of Elections now has a tight timetable to send ballots to deployed military personnel. Federal ballots were mailed in Sept. 21, but local and state ballots must be printed in Albany, returned to Geneseo and then mailed before the end of business Friday.

“It’s a presidential election year and our workload is a lot bigger to begin with,” Leven said.

Even after the ruling, Sessler continued to raise concerns about the actions by the Board of Elections.

“I have a lot of questions as to why things were done outside of my presence,” he told reporters immediately following the hearing. He said he hoped the county committee would allow him an opportunity to address the actions of the past few weeks prior to a vote.

“The question the committee has when they convene is whether or not they want to have a three-way race or a two-way race,” Sessler said, reaffirming his decision to continue on the Conservative Party line regardless of whether he receives the Republican nomination. “The committee can make make its determination as to whether they want me on the Republican line or whether they want to win.”

Sessler said his decision to sue was about justice.

“If you want to be the district attorney, you had better be legalistic,” he said. “If you’re not, don’t take the job.”

Schiener countered he would have preferred to spend the last two weeks campaigning instead of responding to court challenges.

“It’s thanks to my Republican opponent that we are here today wasting valuable time,” he said. “I am so impressed by our staff. Both Democrat and Republican Board of Election Commissioners were amazing in protecting the secrecy of ballots and protecting everyone’s vote. For them to call that into question and to raise the specter of some kind of conspiracy or otherwise is really upsetting.”

As to the prospects of a three-way race, Schiener said, “That’s Mr. Sessler’s doing.”

He said he thought his demeanor through the legal challenges and the way he campaigned would speak well as he seeks the final nomination from the committee.