BERNE — A decision Tuesday in Albany County Supreme Court to count two contested absentee ballots has led to a win by Democratic town board candidate Joel Willsey, by only one vote. The vote determines a Democratic majority on the town board following a heated election where the Democratic incumbent supervisor was ousted by a Republican challenger, Sean Lyons.

Willsey will join Democrats Karen Schimmer and Dawn Jordan, who were not up for re-election, preserving the decade-long Democratic majority on the board. Republican Dennis Palow won the other seat while his running mate, Frank Brady, was edged out.

“If they’re reasonable, things will get accomplished,” said Willsey, of the mix of Republicans and Democrats who will serve on the town board.

Willsey said that while in office he would like to see “a bit more straightforward, honest communication.”

“People voted based on a lot of falsehoods,” he added.

Neither Brady nor Berne Republican Chairman Randy Bashwinger returned calls Wednesday seeking comment on Mackey’s decision.

The ruling, made by Judge L. Michael Mackey, determined that two absentee ballots should be opened and counted in Berne’s general election.

The ballots were brought in by town tax collector and Berne Democratic Party Chairman Gerald O’Malley, who had been designated to collect absentee ballots from 10 different people. The Albany County Board of Elections’ guidelines state that O’Malley was allowed to collect eight, Republicans said, leading to a lawsuit filed by the town Republicans to keep the ballots unopened and uncounted.

The absentee ballots were canvassed on Nov. 15 by the Albany County Board of Elections, after which it was confirmed that the two town board positions and the position for town supervisor had been won by the Republican-backed challengers. With the last two votes set aside, Frank Brady, a Democrat backed by the Republican party, narrowly clinched the position on the town board by one vote.

A newcomer to politics like Brady, Willsey was nominated in place of long-time councilman, Joseph Golden, who decided not to run for re-election. Brady filed a lawsuit against the board of elections, as well as his opponents, on Nov. 20, to keep the ballots from being counted.

The hearing

The hearing was held in Albany County Supreme Court on Monday, Nov. 27, at 10 a.m., with Judge L. Michael Mackey presiding. The litigants included Brady, represented by attorney John Sweeney; Willsey, who represented himself; Albany County Board of Elections Democratic Commissioner Matthew Clyne; and board of elections Republican Commissioner Rachel Bledi.

Sweeney introduced four articles of evidence and cross-examined a witness. Willsey, on the other hand, said he did not have anything to say during the hearing.

“This is a pretty straightforward case,” said Sweeney in his introduction. He explained that the argument focused only on the county’s election procedure based on a a federal court case that should have prevented the two absentee ballots from being collected, he said.

Sweeney was referencing the 2006 court case, Willingham v. Albany County, in which an employee of the Albany Housing Authority, Democratic Party ward leader and the campaign manager for two candidates for the Albany County Legislature collected about 160 absentee ballots from low-income residents of Albany apartments during a special election.

According to Sweeney, a ruling on the case established a precedent in Albany County for capping the number of absentee ballots collected by an individual at eight. He later emphasized that this was used as a safeguard by the board of elections to prevent voter fraud.

Democratic Commissioner Clyne said that the decree that was made after that case in 2007 had expired in 2010, but Republican Commissioner, Bledi, said that the ballot cap had been adopted into the board’s manual for policies and procedures. Clyne had stated he was in favor of counting the ballots, and Bledi stated that she was against counting them.

Clyne said that the board uses a logbook to keep track of those people who are designated to collect others’ absentee ballots as well as those ballots. Those designated must sign the logbook, and it is reviewed by both Republican and Democratic board of election employees, he said.

“I can only assume somebody miscounted,” Clyne said, in response to Mackey asking how a mistake could occur with this type of tracking.

The two contested ballots were the first that O’Malley collected, but were the last to be counted during canvassing and therefore were set aside. Clyne said that, had the mistake been caught earlier, the voters would have been notified and either mailed a ballot or otherwise been given an opportunity to re-submit their votes.

“This has happened many, many times,” he said, of following the protocol.

Bledi said that the board had recently changed the logbook it used to track absentee ballots from a composition book to a book with inserts that were used to more easily keep track of ballot collectors, with their names in alphabetical order. She said that O’Malley’s sheet had been moved by an employee, however, and put in the back of the book, causing employees to miss the two extra ballots submitted. Bledi also said that the ballots were submitted late.

“It is possible that we would not have returned these absentee ballots,” she said.

Sweeney presented four items for evidence: exhibit one, the log of absentee ballots and the collector’s signatures; exhibit two, the master list of absentee ballots; exhibit three, one of the unopened ballots; and exhibit four, the other unopened ballot.

He called Bledi to the stand for a cross-examination, during which he asked her about the ballots and why they were unopened. Bledi said that Brady’s surrogates — Berne highway superintendent and Republican Party Chairman Randy Bashwinger as well as Thomas Spargo, a disbarred lawyer who had once been a Berne town judge and New York State Supreme Court Justice — had objected to the ballots being opened because the eight-ballot cap had been breached. Sweeney also asked Bledi to review the master list that showed O’Malley had picked up 10 ballots.

During the cross-examination, Bledi also said that O’Malley is the Berne Democratic Party Chairman and has regularly picked up and submitted absentee ballots, as shown in the logbook he has signed.

Bashwinger told The Enterprise that Spargo had not assisted with this year’s campaign, but had helped in 2014 when Bashwinger ran for the first time as highway superintendent and won. He said the GOP had asked for Spargo’s assistance in the past few weeks when canvassing the absentee ballots. Spargo works with Sweeney, which is how Sweeney came to represent Brady.

Sweeney also asked Bledi about what candidates had been nominated by the Working Families Party, to which she replied that there had been town board candidates nominated by the party. Sweeney explained that he asked this because a petition for Timothy Lippert to be nominated by the Working Families Party for supervisor had been thrown out due to an error on the petition.

Bashwinger showed The Enterprise a copy of the petition, the error being a blank space where the number of signatures should have been listed, he said. Lippert had been unsuccessful in getting the Democratic line at that party’s caucus; it went to incumbent Kevin Crosier, who was ultimately defeated by Republican Sean Lyons.

Sweeney asked that there be given enough notice to file an appeal if needed, which Mackey agreed to. Mackey said that a decision would be made and he would notify litigants in 24 hours.

The ruling

Mackey noted in his written decree that the consent decree from Willingham vs. Albany County applied only to the parties mentioned in this decree, not to O’Malley, and this decree had expired.

Mackey described the two extra ballots as “consisting nothing more than a type of slight deviation” from the eight-ballot limit. He noted that the board of elections would have notified the voters and O’Malley had the proper procedures been followed, and so the votes would have been cast.

Willsey said on Wednesday that he saw the argument made by Sweeney on Brady’s behalf as flawed. The eight-ballot limit had been self-imposed by the board of elections, he said, and the votes should have still been counted had the extra ballots been initially discovered.

“That rule just makes it that the votes have to be sent back to the voter,” he said.

The hearing had both Democratic and Republican allies in the gallery: on one side of the aisle was O’Malley, town Clerk Anita Clayton, town Justice Albert Raymond, and town Councilwoman Jordan, all Democrats, as well as Albany County Democratic Party Chairman Jack Flynn. O’Malley, Clayton, and Raymond kept their seats this election; Jordan’s seat was not up for re-election. On the other side of the aisle was Bashwinger and councilman-to-be Dennis Palow, a Republican.

Flynn and O’Malley both expressed dismay at the thought of the two voters having their ballots thrown out. O’Malley told The Enterprise following the hearing that it was likely that the voters, who are currently in Florida, do not know that their ballots were debated in a court hearing.

O’Malley also had said five town appointments could have been changed based on what party got the majority in the town.