ALBANY — After more than two years and many legal maneuvers, United States District Court Judge Lawrence E. Kahn ruled yesterday that two remaining absentee ballots in a contested be opened.

Currently the race is tied — 508 to 508. The two remaining absentee ballots — to be opened today — will decide the race.

The contested District 29 race in Guilderland’s Fort Hunter area, between Democratic incumbent Gene Messercola and Republican challenger Lee Carman, was heard in Albany’s federal court yesterday morning. This decision comes after the case was heard in state’s Supreme Court and then the state’s highest court, the Court of Appeals.

The Guilderland district remained without representation for several months before the Albany County Legislature, which is dominated by Democrats, made a unanimous decision to allow incumbent Messercola to resume his post until the election debacle was resolved.

A similar situation in Colonie was resolved in court earlier this week when Republican William Hoblock was declared the winner of his district by four votes.

The two ballots that Kahn ruled to be opened on Thursday were a part of 40 absentee ballots being contested from the 2003 special election, which was postponed to April of 2004 because of a redistricting controversy taking place at the time.

The two ballots being opened are not ensured to be valid as they will have to pass Albany County Board of Election standards to be counted. Also, a valid vote for each candidate could result in another tie and would then have to be resolved by the county’s legislature.

Carman’s lawyer, Paul DerOhannesian, said that every vote should be counted regardless of who the vote is for.
"It was through no fault of the voters that there were errors in processing the ballots," said DerOhannesian. "That’s been our position."

When asked if there could be further delays in opening the remaining ballots and picking a winner, DerOhannesian told The Enterprise, "I can’t see any justification for not doing it tomorrow."

He also said that he and his client have been fighting for all of the votes to be counted.
"The opposition said these two votes shouldn’t be included with the original 40," said DerOhannesian, who added that voters should be entitled to their vote for any candidate.

Party enrollment in the town of Guilderland is about one-third Democrat, one-third Republican, and one-third independent or small party.

In 1999, Carman also ran against Messercola and, the day after that election, the results were too close to call as well. Messercola led Carman then by 26 votes and eventually was officially declared the winner, after absentee ballots were counted. Messercola won then by 29 votes.

The Democratic incumbent, Messercola, 67, is a life-long resident of Guilderland and has served on the Albany County Legislature since 1999 after beating Carman.

Retiring from his job as a business manager and president of the International Union of Operating Engineers, Local 106, after 41 years, Messercola decided to get into politics. He was a board member of the Albany County Industrial Development Agency for eight years, and is also a member of the Guilderland Elks and St. Madeleine Sophie’s Church.

The Republican challenger, Carman, 38, is also a life-long resident of Guilderland and holds degrees in finance and management from Clarkson University.

Carman has told The Enterprise in the past that, if elected, he would like to see the size of the Albany County Legislature reduced; even if it cost him his own job. He wants to help the county get a better hold on its budget and has proposed having county legislators hold periodic public meetings with their constituents. Carman is involved in several community groups, including the Guilderland YMCA board and its finance committee, and the Guilderland Soccer Club Board.

Courts battles

The problem began two years ago after the election was postponed amidst gerrymandering charges and a court battle ensued over redistricting. There was a long wait to announce the winner of the election caused by litigation over the validity of absentee ballots.
A year ago the Democrat and Republican parties again clashed over the matter. The Democrat’s lawyer claimed the GOP was manipulating the election process to "cheat the people," and the Republican’s lawyer maintained that, unless all the ballots were opened, voters would be disenfranchised and there would need to be a new election.

The Court of Appeals, in a 5-to-2 ruling, said, that although the county’s board of elections was mistaken in sending absentee ballots for a special election in April to those who filed for them in November, it is a voter’s responsibility to question the legality of his ballot.

As a result, Democrats sued and Republicans countersued in May as both parties disputed dozens of absentee ballots cast for the special election in April. Instead of sending new absentee ballots to voters who would be out of the county that day, the county’s board of elections sent ballots to those who had applied for them in the November special election.

The Court of Appeals decided that the absentee ballots were outdated and should not be counted. Republicans then took the disputed ballots to the federal court, citing an infringement on voter’s rights.

Kahn on Wednesday ruled the ballots were to be opened.

The large open federal courtroom yesterday morning was sparsely filled with a handful of lawyers on both sides, the judge, court clerks, and the Enterprise reporter. The atmosphere was slightly tense, but with low chatter and camaraderie heard throughout the room, and even a few light jokes from the bench.
"We’ll have to figure this out," Kahn said will a soft chuckle as he listened to both sides. "Too bad it was such a close election."

Kahn called a recess to read over paperwork submitted by both the Democrats’ and the Republicans’ lawyers and came back with a decision to open the remaining ballots within a few hours.