Candidates Tied After Judge Orders Ballot to Be Counted

, New York Law Journal

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The lengthy and unresolved race for Plattekill town justice came no closer to a resolution Monday after a disputed absentee ballot left the candidates in a dead heat.

Under orders from Supreme Court Justice Richard Mott (See Profile), officials at the Ulster County Board of Election opened and counted an absentee ballot that had been sent in by local resident, Joseph Demske.

Demske voted for the incumbent, Democrat John Sisti, which brought the judge into a 1,050-to-1,050 tie with his challenger, Republican Robert Murphy.

Murphy has not moved to appeal Mott's order, so the next step is unclear, said Thomas Turco, a commissioner at the Ulster County Board of Elections.

Turco said that under town law, the town board would appoint a judge until the November election. But an opinion on a similar matter from the Attorney General indicates that Public Officers Law prevails, in which case the governor could call a special election to fill the position sooner, he said.

The problem surrounding Demske's ballot arose when he submitted an absentee voter application two weeks after the primary election but nearly two months before the general election. Demske mistakenly checked a box requesting a ballot for the "primary election," even though that date had come and gone.

Mott, in Murphy v. Work, 13-4033, said Demske's intent to vote by absentee ballot in the general election was manifest, and "his simple error" in checking the wrong box "must be deemed to be a mere, technical, inconsequential error."

Mott found no evidence that the Board of Elections, in providing Demske with a ballot for the general election, engaged in fraud or was attempting to favor a particular candidate.

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