ALBANY, N.Y. (CN) - After New York's highest court refused to hear a second appeal and 99 disputed ballots were counted, a Democratic state Senate candidate eked out an 19-vote upset victory in a new district that was expected to be a safe seat for a Republican.
Cecilia Tkaczyk apparently edged past George Amedore Jr., who led by 35 votes before the disputed ballots were opened today (Friday). The last vote, opened Saturday, cut Tkaczyk's lead to 18.
The ballots were opened Friday after by the Appellate Division of New York Supreme Court ruled on Jan. 9 that 99 disputed absentee and affidavit ballots should be counted.
That ruling sent Amedore to the Court of Appeals, but the state's highest court, in a 4-1 decision Wednesday, chose not to take the case.
The seat in the new 46th District, just outside Albany, has been up for grabs since the Nov. 6 general election.
When the polls closed on election night, Tkaczyk led Amedore, but as absentee ballots came in and voting machines were canvassed, the lead passed back and forth.
Eventually, a court-supervised count of disputed absentee and affidavit ballots was conducted in each of the five counties that make up the district, which stretches from Amsterdam to Kingston. When that was over, Acting Montgomery County Supreme Court Justice Guy Tomlinson certified Amedore as the winner by 37 votes.
Tkaczyk appealed to the Appellate Division's Third Department in Albany, which ruled that Tomlinson erred in sustaining objections to the 99 ballots.
Eight of the 99 disputed ballots were opened Thursday, cutting Amedore's 37-vote edge to 35.
Amedore, a vice president of his family's home-building business in suburban Albany, was an assemblyman who represented a district encompassing Montgomery and part of Schenectady counties.
Tkaczyk (pronounced Ka-chick), who lives on a small farm in Duanesburg, near Schenectady, has worked in affordable housing and is a former legislative aide to Senate Democrats.
The new 46th District was created when New York redrew district lines last year to reflect changes brought about by reapportionment. Republicans, who controlled redistricting in the Senate, were said to have created the seat for Amedore to assure their continued majority in that house.
But Tkaczyk, a political newcomer and relative unknown, saw her campaign boosted by late ads, made possible when New York City Democratic super PACs pumped in $500,000. Among the big donors was Jonathan Soros, a Manhattan hedge fund manager and son of billionaire George Soros, according to the Albany Times Union.
Republicans had expected the new 46th District to give them a majority in the 63-seat Senate, which they have dominated for decades. But a power-sharing arrangement with a breakaway contingent calling itself the Independent Democratic Conference, brokered as 2012 ended, made the seat less important.
Tkaczyk carried Albany and Ulster counties on election night; Amedore won Montgomery, Schenectady and Greene counties.
All but one of the 91 ballots counted today were from Ulster County. Many were from election inspectors who had to work on election night and were allowed to cast special paper votes. But the Ulster County Board of Elections handed them out more than two weeks before Nov. 6, contrary to state election law, and they were challenged.
The Appellate Division said the inspectors' 53 ballots should have been counted.
Election law stipulates that boards of elections can make ballots available "not earlier than two weeks before the election and not later than the close of the polls," the Appellate justices said in their per curiam decision.
But the law is silent on how quickly ballots may be returned. In the case of the Ulster County inspectors, they were returned more than two weeks before the election, according to the justices.
"The clear language of the statute provides that the two-week time period applies only to the provision of the ballot and not its return by the voting election inspectors," the justices wrote.
The law was amended in 2003 to state that special ballots should be cast before the polls closed on Election Day, "without direction to the voters regarding the earliest time that they may cast their ballots," the justices said.
"Despite the Ulster board's violation of the statutory direction to provide the special ballots 'not earlier than two weeks before the election' (Election Law 11-302), the voters did not violate any portion of the statute directed at them. Thus, the 53 challenged special ballots should be cast and canvassed."
Twenty-six disputed ballots were challenged affidavit ballots whose envelopes contained inaccurate or incomplete information.
Election law allows affidavit ballots to be cast when a voter appears at a polling place but is not on the registered roll. They "swear to and subscribe" that they are eligible to vote and fill out the affidavit ballot, and provide information outlined in the statute.
Acting Supreme Court Justice Tomlinson had upheld objections to 209 affidavit ballots, but the Appellate Court justices reviewed them and decided that 26 "contain all of the statutorily required information" and could be counted. Most were from Ulster County.
The justices also ordered absentee ballots counted that had been challenged by Amedore, because he "failed to provide sufficient evidence to overcome the presumption that the individuals who cast [the ballots] ... resided where they were registered to vote."
Five Appellate Court justices unanimously backed the decision: Thomas Mercure, Edward Spain, Leslie Stein, William McCarthy and John Egan Jr.
At the Court of Appeals, Chief Judge Jonathan Lippman and judges Susan Read, Robert Smith and Eugene Pigott concurred in the decision not to take up Amedore's appeal.
Judge Victoria Graffeo, who dissented, wrote that the issue of special ballots for poll workers "presents a significant issue of statutory interpretation that should be resolved by our court."
Voters are expected to appear in person at their polling place to cast their ballot, Graffeo said, unless they fall into "one of the few narrow categories" where alternate means of voting are allowed.
"We have traditionally required strict compliance with these procedures, even when an inadvertent error by a board of elections has proven detrimental to the voter," she wrote.
But since election law "precludes a board of elections from supplying a special ballot to a poll worker more than two weeks before election day and then directs that the ballot be cast no later than the close of the polls, a strong argument can be made that the statute requires special ballots to be cast no earlier than the two weeks preceding the election.
"Yet, here," she wrote, "where special ballots were both given to poll workers and cast more than two weeks prior to the election, the Appellate Division concluded that there was no violation of the election law, thereby allowing the votes to be canvassed. ...
"I believe further appellate review is warranted."
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