Expect Delays: Tedisco-Murphy Goes to Court

POUGHKEEPSIE—Today is the first court appearance of the campaigns of Assemblyman Jim Tedisco and Democratic Scott Murphy, where they will begin haggling over the 10,000 absentee ballots cast in the race to replace Kirsten Gillibrand, which ended with the men separated by mere dozens of votes.

The Republican State Committee filed an injunction in Supreme Court here in Dutchess County that prevented the counting of all paper ballots in the race until lawyers can agree upon which ballots to count. The Republican side will be represented by John Ciampoli. The Democratic team will be led by Henry Berger. The two have met in court several times before.

One official familiar with their work predicted a fight that will be both intense and long.

"Take it from someone who was impacted the most by the recount in my race: me," former State Senator Nick Spano told me last week. He won his 2004 race against Andrea Stewart-Cousins by 18 votes after three months of court battles.

"It was a very frustrating and long, cumbersome process," Spano recalled. "John Ciampoli is so meticulous that he's a pain. And Henry Berger is a tenacious and well-respected expert on the election law. And they were both tigers."

But they were cordial, Spano stressed. He, and others familiar with election law in the state, gave a preview of how this process will go.

First, both attorneys will review the applications for each absentee ballot, which shows the voter's name, party enrollment and address. Based on those pieces of information, the campaigns will determine whether they want to try and exclude the ballot or not. Then they will search for some reason—anything from a stray scratch to a misspelling—to have it thrown out. Both sides have already begun calling voters who cast absentee ballots. One voter in Clifton Park told me he had already been contacted twice. While the application is publicly available to both sides, the actual ballot remains sealed. So unless one side or the other is told something with certainty, this process is heavy on guesswork.

Both sides are confident they will have the edge, but Republicans seem more willing to throw around numbers. They say military voters will favor Tedisco.

It's extremely hard to predict how long the fight could last.

There is of course, the Senate race in Minnesota between incumbent Norm Coleman and Al Franken, which some predict could take "years." 

Upstate New York saw this kind of a situation just last year in the race between Eric Massa and incumbent Representative Randy Kuhl. Massa eventually prevailed; the absentee ballots maintained the 5,000-vote lead he held since election night.

In that race, William Pulos, an attorney in Hornell who was retained by Kuhl's campaign, filed for an injunction similar to this one in Steuben County court on the morning after Election Day. Eventually, lawyers for both sides agreed upon a counting procedure outside of court.

"We worked well together, the attorneys had a good relationship on both sides, it was not acrimonious and we all worked together to develop a mutually agreeable procedure," Pulos said last week. "The candidates were 5,000 votes apart, and perhaps because of that, we did not experience acrimony."

But it still took several weeks.

In the 20th District, military ballots can still be received until April 13, so counting is not likely to begin before then. Tedisco said at a press conference Friday that he expects the "due diligence" required in the count will mean it's "not going to be over in a couple weeks."

Given that, I asked Massa what advice he had for Murphy.

"Turn the phone off for a couple of days, and spend some time with your family," he said. "Because this is now in the hands of professionals who will monitor the recount. Fretting and worrying will just consume more aspirin."