District Attorney Race

Sessler up by one with one ballot unopened

Livingston County District Attorney candidate Steve Sessler will either win the Republican nomination by two votes Monday morning, or he’ll be tied with opponent Eric Schiener.

New York State Supreme Court Justice John Ark ruled Friday on five absentee ballots that remained in question following a tie vote of 1,879 to 1,879 last week. Ark’s decision Friday takes into account a miscounted ballot that gave Schiener a one-vote lead before the absentee ballot challenge.

Of the five ballots in question, Ark allowed a vote for Schiener with a late postmark. He also allowed two ballots with stray marks, each for Sessler. The judge discarded two more ballots that were sent to the Board of Elections unsealed.

Ark set aside one final ballot in case there was a tie — and that ballot will be opened at the Livingston County Board of Elections Monday morning at 9 a.m.

If the vote is for Steve Sessler, then he will win the Republican nomination. If the vote is for Eric Schiener, then the Livingston County Republican Party will meet Monday night at 7:30 p.m. to pick their nominee.

Schiener won the endorsement of the party last June by a 9-to-1 margin.

“This shows us the importance of a single vote,” said Livingston County Republican Committee Chairman Lowell Conrad. “It shows us the importance of hard-working campaign volunteers and the importance of the county committee.”

When The County News reached Schiener for comment Friday afternoon, he called Judge Ark’s ruling a “well-reasoned decision.”

The specifics

The late ballot, cast for Schiener, was sent in by poll inspector who called the Livingston County Board of Elections on Sept. 12 at 4:20 p.m., the day before the primary election. Because the board office had closed at 4 p.m., an election commissioner told the inspector he could apply for a special ballot the next day. Because this voter was clearly qualified to cast a special ballot, and because he “set into motion

“Most certainly if a citizen is going to avail himself or herself to serve as an election inspector, he or she should be extended the opportunity to receive a timely application to receive a ballot and vote,” writes Judge Ark. “By timely calling the board of elections and being told he could come in the following day, [the voter] complied with the statutory directive. His ballot is to be counted.”

Two ballots were cast for Sessler, but contained “stray marks” that state law says may disqualify a ballot. One ballot from Avon contained a single cross mark for Sessler and a White Out in the circle for Schiener. The other ballot, from Mount Morris, contained a filled-in circle for Sessler and a check mark under his name.

While these marks were irregular, Ark pointed to a state law that says that no vote shall be “rejected solely because the voter failed to follow instructions for marking the ballot…”

“A mark is considered valid when it is clear that it represents the voter’s choice and is the technique consistently used by the voter to indicate his or her selections. Such marks may include, but are not limited to, properly filling in voting position targets, cross mark ‘X,’ a checkmark, circles, completed open arrow, an erasure, or any other clear indication of the voter’s choice.”

Two ballots arrived unsealed, and were, according to Ark “clearly not and never were sealed and are to be ‘laid aside unopened.’”

A sixth unopened ballot, which was not entered into court for a ruling, will decide the outcome of the primary on Monday.