We recommend the account of the race for NY Assembly in district 100 as related in yesterday's Daily News under the headline Dem Frank Skartados doomed by vague election law crafted by his own lawyer. One of the rationales used by op-scan proponents has been that in close or questionable elections the paper ballots could always be recounted by hand. Yet for the second time this year in a close and politically crucial race an election was certified without re-examining the paper ballots counted by op-scan, although in the end a mere 15 votes separated the two candidates. See the story here and below:
Dem Frank Skartados doomed by vague election law crafted by his own lawyer
Monday, February 21st 2011, 4:00 AM
Assembly Speaker Sheldon Silver's former adviser wrote the state law that may have cost him his powerful, veto-proof, Democratic supermajority.
Democrat Frank Skartados was forced to concede the seat for the 100th Assembly District last week when he was a mere 15 votes behind.
In his heart of hearts, he believes he won.
But in a double whammy of irony, Skartados was seemingly doomed by a vague election law that was crafted by his own lawyer, Kathleen O'Keefe, while she worked as Silver's chief election counsel. O'Keefe's strict interpretation of her own law walled off one of Skartados' last hopes of fighting for the seat.
"I couldn't do anything with the way the law was written," said Skartados, who conceded to Republican Tom Kirwan after one of the most drawnout contests in state history. "But I feel that justice was not served because the voices of everyone were silenced by the courts."
A Brooklyn appeals court ruled unanimously in favor of Kirwan when it tossed out about 60 contested affidavit ballots. That left Skartados just 15 votes behind. In New York City, Board of Elections rules automatically require a hand inspection of the paper trail from voting machines in any election where the margin is 0.5% or less.
State election law doesn't - and in races as close as the one for this Hudson Valley seat, it could make all the difference. "New York law offers very little guidance as to when a full recount is required," elections law expert Jerry Goldfeder said. "The law needs to be clarified."
It's Monday morning quarterbacking, but what if Team Skartados had chosen to do something it never did: push for the machines to be opened?
Take this example:
Mr. and Mrs. Public vote in a state Senate race. Mr. Public goes to the polls; Mrs. Public mails an absentee ballot. Being of like mind, they both choose Candidate Z. They also make the same error: Both circle Z's name instead of properly filling in the oval on the ballot.
Mr. Public feeds his ballot into the voting machine, which scans the blank oval and counts it as an "undervote," or no vote in that race.
Mrs. Public's absentee ballot is opened, and election officials - who are required to consider the voter's intent - mark down a vote for Z. Mrs. Public's vote is counted. But if the machines stay closed, Mr. Public's vote disappears.
O'Keefe, reached yesterday, headed off any questions. "I have no comment, [and] I'd rather you didn't call me," she said before hanging up. Silver did not return a call.
Even Kirwan's lawyer James Walsh - though thrilled with his client's victory - said he would have interpreted the law differently if he'd been in O'Keefe's place in the 100-day-plus struggle.
"If I were her, I would've [tried to] open up all the machines - especially [in] Dutchess County," with its higher concentration of registered Democrats.
It's certainly true - and Skartados readily agrees - that if the machine paper were hand-counted, he still might have lost.
We'll never know.
"I don't feel any justice in this election," he said. "We've been taught in schools that every vote counts - and obviously, in this case, every vote did not."