The fate of the nation's only remaining undecided congressional race will be submitted to a State Supreme Court judge in Riverhead today.
Lawyers for Tim Bishop and Randy Altschuler are scheduled to appear in the Riverhead courtroom of Judge Peter H. Mayer today to begin arguing over the more than 2,000 absentee ballots challenged by both candidates in the race for New York's First Congressional District.
First, both sides will meet at the Suffolk County Board of Elections in Yaphank to watch as election workers count the 71 military ballots that arrived after the counting was finished up last Tuesday, Nov. 23. State law allows for the counting of absentee ballots mailed overseas on or before Nov. 1 to be counted if they arrive at the board of elections before the close of business Nov. 24.
The two camps will also attempt to cull the number of challenges by mutual agreement before presenting the contested ballots to Judge Mayer, according to Bishop spokesman Jon Schneider.
Altschuler has challenged 1,261 ballots and Bishop has challenged 790 ballots, according to Schneider.
Excluding those contested ballots as well as the additional 71 military ballots, Bishop had 97,050 votes to Altschuler's 96,815 votes, a difference of 235 votes.
Schneider last week expressed confidence that Bishop's lead would hold up after the court rules on the challenged ballots. He predicted 90 percent of the challenges would be dismissed, leaving Bishop in the lead.
Altschuler's spokesman Rob Ryan scoffed at the notion that 90 percent of Altschuler's objections would be dismissed, maintaining, "This race is still too close to call."
"Our challenges are real and substantial challenges," Ryan said. He said the Altschuler campaign focused on people who maintain two residences — mostly East End residents who have other homes elsewhere, such as New York City.
State law prohibits being simultaneously registered to vote in two places, Ryan said.
Yesterday, Ryan referenced a blog written by Eric Shawn of FoxNews.com, in which Shawn wrote that 438 absentee-ballot voters in the 1st CD also have mailing addresses in New York City. Of those voters, 48 were on the New York City voter registration rolls as "active" voters in this election.
Anyone who registers in more than one election district for the same election is guilty of "false registration," a felony under New York election law.
Shawn wrote that his investigation revealed one Democratic voter, whom he did not name, submitted an absentee ballot in the 1st CD race and also voted in New York City on Election Day.
But Schneider argues the vast majority of Altschuler's 1,261 challenges were frivolous. "They indiscriminately challenged everyone that had two mailing addresses," Schneider said, including college students and even the congressman's own parents, who voted from Florida due to his father's illness.
Today's court appearance will likely consist of preliminaries, Schneider said. The adjudication of objections will probably begin in earnest tomorrow, he said.
The formal motion, filed by Altschuler yesterday, is before Judge Peter H. Mayer, a Democrat elected to a 14-year-term as State Supreme Court Justice in 2005 and former chief of the major crime bureau under Suffolk County District Attorney Thomas Spota.
The parties conferenced in Judge Mayer's chambers on Nov. 9, when Bishop was seeking a full hand-count of all ballots scanned by voting machines on Election Day. Bishop was alarmed by the dramatic swing between the tally reported by poll workers on election night and the electronic data downloaded from the new optical-scanning voting machines two days later. Bishop had seen a lead of nearly 3,500 votes morph into a deficit of 383 votes after the electronic data was recorded. Altschuler refused to consent to a recount, arguing that the swing in the numbers was a result of human error — election workers unfamiliar with the new voting machines' printed reports misread the numbers on election night. Altschuler insisted on waiting for the completion of a state-mandated voting machine audit.
The audit, now completed, of a randomly chosen sample of 3 percent of the voting machines used in Suffolk County showed the machines to be "100 percent accurate," according to election officials.