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Cape Vincent ballot dispute goes to Supreme Court

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CAPE VINCENT — State Supreme Court Judge James P. McClusky has ordered all ballots from the Nov. 5 election for town offices preserved and ordered that the Jefferson County Board of Elections determine the validity of about 100 absentee votes cast in the election.

Democratic candidates Dennis W. Pearson and Paul F. Aubertine, who are running for seats on the Town Council, and Alan N. Wood, who is running for supervisor, filed a legal challenge to the ballots Monday at the county clerk’s office against Board of Elections Commissioners Jerry O. Eaton and Babette M. Hall, as well as Town Council candidates Brooks J. Bragdon and Michelle T. Oswald and supervisor candidate Urban C. Hirschey.

In their petition, the Democratic candidates, all of whom appear to favor wind turbine development in the town, claim that “the final result of this election will hinge upon the canvass of the absentee ballots” and that a failure to secure the ballots would “irreparably harm” them.

They also asked that voting machines which “appear to have malfunctioned and/or been tampered with” be impounded and the machines tested and inspected. Judge McClusky has issued an order to show cause, giving the Board of Elections and the Republican candidates, who are opposed to wind farm development, a chance to argue why they should not be ordered to, among other things, determine the validity of all votes cast in the elections.

According to court documents, the Democratic candidates claim that, of a total of 307 absentee ballots returned, objections were filed to 88 ballot envelopes and 11 actual ballots. They maintain that the 99 total disputed ballots are within the vote spread cast at the polls among various candidates and, as a result, “the outcome of the election for public offices at issue herein will be determined by the validity of the 99 absentee ballots objected to.”

It is believed the absentee ballots will favor the anti-wind candidates, as the ballots come primarily from seasonal residents opposed to wind farm development who have registered to vote in Cape Vincent. On election night, Mr. Wood was leading the incumbent, Mr. Hirschey, in the supervisor race, 501-426. Election night results showed Mr. Aubertine in the lead in the council race with 542 votes, followed by Mr. Pearson with 497 votes. Incumbents Mr. Bragdon and Ms. Oswald came in third and fourth with 406 and 386 votes, respectively.

The Democrats claim in their action that the Board of Elections improperly issued absentee ballots “in error, based upon insufficient, fraudulent or forged applications.” They maintain that the ballots were given to people whose primary residence is not in the town of Cape Vincent, making them ineligible to vote in town elections. They also claim that a voter in the town’s District 2 was allowed to vote on a ballot used exclusively for District 1.

Judge McClusky has ordered the Board of Elections to prepare all the necessary records for the canvass of the votes, including the registration records of voters casting paper ballots, absentee applications, poll books and other related documents. He ruled that any ballots objected to should be “ruled upon” by the board, then laid aside and preserved by the board and “shall not be canvassed pending further judicial review.” If there is a split vote on the validity of a ballot, the judge ordered that all documentation about the ballot be preserved for the court’s review.

Judge McClusky’s order also prevents the local Board of Election from certifying results with the state Board of Elections pending further court order. He has set Nov. 26 as the day for the Board and Elections and the Republican candidates to present their position as to why the Democrats should not be granted the relief they seek.

Mr. Wood said Tuesday he didn’t know what attorney or law firm is representing the Democrats, and calls to Timothy White, to whom Mr. Wood referred a reporter, were not returned. One document in the supporting documents filed in the case was attributable to Kevin Murphy, an attorney with the Wladis Law Firm, Syracuse. A call to confirm Mr. Murphy’s association with the case was not returned.

One of the Republicans named in the suit, Mr. Hirschey, said the party is being represented by James Walsh, an Albany attorney. He said he and his Republican colleagues will see the court action through to its conclusion.

Mr. Hirschey said the allegation of malfunction or tampering with voting machines was news to him, and he didn’t give it much credence.

“We’re just playing it square and fair,” Mr. Hirschey said.

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