DA primary result in the hands of the court
The odds of a tie election when 3,758 person are casting their votes are extremely small. Yet that’s exactly what happened after 216 absentee ballots were tallied in what had already been a very close 1,792-to-1,773 primary contest between the two Republican candidates for Livingston County district attorney. Steve Sessler and Eric Schiener were tied 1,879-to-1,879.
The potential tie breakers are four-to-seven remaining absentee ballots whose validity will be decided by State Supreme Court Justice John Ark at a hearing scheduled in Seventh Judicial District Court in Rochester this Wednesday, Sept. 26.
The acting supreme court justices based in Livingston County, Dennis Cohen and Robert Wiggins, have recused themselves from playing a role in the possible selection of the people’s prosecutor they would most frequently see in their own courts.
The Livingston County Board of Elections chose not to count three ballots which bear “extraneous marks” explicitly not permitted under state law. A fourth ballot, which has the original entry covered by ‘white-out’ and a new entry written in, was likewise not counted
The fifth uncounted ballot, an unopened and sealed envelope, bears a postmark of Sept. 13, the primary election day — which is after the deadline for absentee voter submissions.
Also uncounted are two ballots which have envelopes either opened, never sealed or with adhesive which failed to stick.
Sessler is alleging that these two — not having been properly sealed — would have been susceptible to tampering or even replacement, and therefore cannot be rightfully counted.
The contents of the four contentious ballots with extraneous marks or white-out carry three votes for Sessler and one for Schiener
The Sept. 13 postmarked ballot remains unopened, but is likely to carry a Schiener vote, having been submitted by a committee person who had supported him.
The two unsealed ballots are of uncertain content.
Tie goes to Schiener?
In the event the four excluded ballots are confirmed by Judge Ark to be invalid, or any combination of valid ballots among the seven still yields a tie, state election statute directs the decision be made by the Livingston County Republican Committee.
Such an outcome seems likely be to Schiener’s benefit. In a June designating meeting, the committee had selected Schiener over Sessler by a nine-to-one weighted vote margin.
(Under election law, primary election tie votes are treated differently than ties in general elections. The latter can be broken by games of chance, if both candidates agree.)
Schiener pledges not to appeal
With the general election less than 45 days away, Eric Schiener told The County News on Monday, “If things don’t go our way with Judge Ark, I can pledge to you first and foremost that I’m not going to appeal. It would be doing nobody any good by dragging out or prolonging this.”
Schiener believes it is absolutely time for the Republican candidate of choice to fully involved his campaign in the contest with the Democratic opponent. If the Republican choice is his opponent, Schiener is willing to fold his campaign to give the party the best shot at getting its candidate into office.
“I’m not sure if my Republican opponent would do the same for me, but, nonetheless, I am pledging to end my campaign if I do not have the majority of primary election votes after Judge Ark makes his determination,” Schiener stated.
Schiener has retained attorney Robert Shaddock to make the case for a favorable outcome in the absentee ballot count. Shaddock will be arguing that all four ballots bearing extraneous marks or white-out should be left set aside. Only one of the three, if counted, would be a vote for Schiener.
On the other hand, Shaddock will be arguing for opening and counting the yet-to-be open envelope bearing the allegedly late postmark. For Schiener it is a ‘good bet,’ having come from a supportive committee member.
Shaddock will be denying Sessler’s allegations that the two unsealed ballots could have been opened and tampered with prior to canvassing, asking that they be counted.
Schiener hopes for an early resolution of the issue.
“Valuable campaign time against a formidable Democratic opponent is being lost,” he said.
Off the Law and Justice line
Schiener has seen a series of campaign obstacles since announcing his candidacy in January. He commented philosophically, “I never envisioned it being an easy road. My family, my supporters and I have taken each new hurdle in stride.”
The most recent came last Friday when Schiener received word that a Sessler challenge to his presence on an independent ‘Law and Justice’ party line has been upheld.
Sessler had alleged that 439 of the petitions signatures in the Law and Justice ballot application were invalid due to previous signings for other candidates or non registered-voter status.
The evaluation by the Board of Elections agreed that in about 180 cases, Sessler’s charge was valid. The deletion of that many signatures has made Schiener’s application fall short of the minimum required 981 signatures by 25.
Schiener told The County News late Tuesday night that he will abide by the board’s ruling if he loses the Republican nomination. If he wins, however, he will consider challenging it.
Summarizing his campaign, Schiener said, “I am proud of the people who supported me and voted for me at the polls or through the absentee process. They voted for someone who ran an honest and fair campaign throughout and who kept his integrity.”
“I continue to fight, but if this hurtle on Wednesday gets me, for the betterment of the party we’ll be closing the campaign with our heads held high. It’s a Republican campaign by and for Livingston Republicans.”
“I am hopeful and optimistic that our arguments will prevail before Judge Ark on Wednesday and I’m looking forward to being the Republican nominee and getting started on this general election,” Schiener said.
Sessler campaign confident of victory
Jason McGuire, a spokesman for the Steve Sessler campaign, emphasized that, as the contentious absentee ballots are examined, “it’s going to come down to what the election law says.”
“That’s all we’re seeking,” McGuire said. “Steve is dedicated to justice. Especially in a D.A.’s race, we have to make sure we are looking at every law and applying the law fairly. Where there are ballots which are in question, we look at the statutes. We are pretty confident he is going to come out on top legally with these issues.”
Describing the current status of the Sessler campaign, McGuire continued, “Every step of the campaign we have basically been able to do what we’ve wanted to do — whether it was Steve as underdog coming up from behind to tie the endorsed candidate, or this challenge [with the absentee ballots], which I think legally we are going to win.”
McGuire predicts that “[Schiener] essentially isn’t going to have any other option than to say, ‘I lost this race.’”
What everybody has been wanting is for a strong candidate to emerge, uniting the Conservative and Republican lines, McGuire suggests. “That’s what this is and why it’s a good process. The primary allows the best candidate to emerge. The people, not the politicians, are able to pick the candidates.”
“What you are looking for in a district attorney is someone who is able to pay attention to detail — and Steve has had to do this for the whole campaign. It’s been borne out and shows he will be a great D.A., able to serve Livingston County well.”
In a primary vote tie scenario, McGuire suggests the “tie goes to Schiener” assumption is not necessarily valid: the success of the Sessler campaign may be giving many Republican committee members second thoughts as to where they should be placing their loyalty.
“Steve has proven himself. Now that they see they’ve got a real candidate here, the committee may have changed its position,” McGuire offered, noting also that the Republican Committee is going to be reorganized during a meeting sometime within the next week.
“It’s a very different scenario than it was the first time Steve went before the committee,” he concludes.
McGuire reports that the Sessler campaign has now pivoted away from the primary, towards the general election. The general election was indeed the subject of the Sessler campaign’s regular Monday evening meeting.
“When Steve comes out of this primary we’re still going to be running against a formidable candidate and a governor’s pick — and I think it’s going to be a good race,” McGuire predicts.
McGuire observes that Sessler’s intensive campaigning seems to have energized Livingston County politics everywhere — noting the busy meeting also underway at Main Street Democratic headquarters this very evening.
McGuire furthermore suggests the campaign has energized his own Conservative Party — likewise shortly to reorganize — to the point where the usual 3,000-or-so Conservative general election turnout in Livingston County will grow to about 5,000.
Into the general election
In the event Schiener is the Republican nominee after the state supreme court decision, he will be appearing on the general election ballot on the Republican line only, unless successfully challenging his Law and Justice party exclusion.
Sessler will be persisting on the Conservative Party line. Greg McCaffrey will be appearing on his major party Democrat line and a second line representing his Independence Party endorsement.
In the event Sessler is the Republican nominee after the state supreme court decision, Schiener will disappear per his pledge. Sessler, on the Republican and Conservative lines, will then be facing McCaffrey, on the Democratic and Independence lines.
McCaffrey had little to say about the contention between his future opponent or opponents. “It affects me ultimately, but it’s not my fight,” he said. “I’m running on my merit, qualifications, experience and my vision for the office. It doesn’t matter if I run against one of them or both of them.”
McCaffrey added that his is glad to be running in a presidential year.
“I want voter turnout,” he asserted. “I have confidence in what I bring. I want every registered voter to take a look at the candidates and cast their vote in every race they can be informed about.”