Two weeks after the Nov. 2 elections, two House races and three state Senate contests across New York remain too close to call. And the state's new electronic voting system, where optical scanners and paper ballots replaced lever machines, has emerged in each case as both the solution and the scapegoat.
In the House races, Democrats Tim Bishop in the 1st Congressional District and Dan Maffei in the 25th District have gone to court requesting a hand re-count of the paper ballots. Both narrowly trail Republican challengers with thousands of absentee ballots yet to count.
In the state Senate races, the Democrats' lead election lawyer has said questions about the electronic machines could form the basis of any potential challenges to the outcome of the contests.
"This is new, and anything new is subject to questions about whether everyone's vote has been properly counted," Democratic lawyer Ken Gross said. "Because of these machines, we have a paper trail now. So it gives us the possibility of a paper re-count."
Gross is representing the state's Democratic Senate Campaign Committee, overseeing the three tight contests that could determine the balance of power in that chamber starting in January.
In Westchester County, incumbent Democrat Suzi Oppenheimer has a slight lead over Republican Bob Cohen. On Long Island, incumbent Democrat Craig Johnson and Republican challenger Jack Martins are running neck and neck. And incumbent Democrat Antoine Thompson trails Republican Mark Grisanti in the Erie County district that includes part of Buffalo.
A new dispute erupted Tuesday in Erie County over the electronic machines. Democrats have called for a hand re-count, claiming the so-called memory sticks containing voting data from three of the machines had produced error messages when election officials tried to read them. But Ralph Mohr, Erie County's Republican election commissioner, said the data was secure and the machines hadn't malfunctioned.
A hand re-count never used to be an option in New York, where voters for 80 years stepped into a curtained booth and flipped metal levers to cast their votes. Those machines were replaced this year after HAVA, the federal Help America Vote Act, required states to adopt voting systems that included a paper record in the event the outcome of a race is disputed.
Now, voters fill out paper ballots that resemble SAT tests, coloring in an oval next to a candidate's name. An optical scanner reads the ballot and produces a tape of the results when the polls are closed and the paper ballots are kept as a backup.
Bishop's spokesman, Jon Schneider, said the switch to the new system is precisely the reason all 185,000 votes cast in that Long Island district on Election Day must be re-counted by hand.
"I don't know why we would have paper ballots except for an occasion like this," Schneider said.
In that race, Bishop had a 3,400 vote lead on election night and was declared the winner after poll workers called results into the local election board. But a miscount was discovered later, giving Republican Randy Altschuler a lead of about 400 votes.
Schneider said the "wild vote shift" helped fuel the campaign's legal challenge. "We're dealing with a race where the two sides are separated by a quarter of a percentage point," he said.
Indeed, some election watchers say the new voting system led to voter and poll worker confusion.
"Many voters found the ballot difficult to read or confusing. When you have races as close as some in New York were, that's a huge issue," said Larry Norden of New York University's Brennan Center for Justice, a voting advocacy group. "If I were representing a candidate in a close race, I would absolutely want a hand recount."
John Conklin, a spokesman for the state Board of Elections, said his office had received very few complaints from voters about the new machines.
"A couple of people complained about the font size on the ballot. And some of it was more, 'I don't like the new system' than a description of a malfunctioning machine," Conklin said.
Unlike many states, New York law does not trigger a re-count even if the margin between two candidates is wafer thin. Some states require a re-count if the margin is less than half a percent.
Instead, every county is required to audit three percent of its voting machines to identify any discrepancies in the voting results. Counties involved in the close races are completing their audits now, and none has reported any major problems. Conklin said that probably dims the chances a judge would grant a re-count but if one was ordered, counties would be required to comply and to pay for it.
Altschuler spokesman Rob Ryan said his campaign's preference was to allow the absentee ballots to be counted and the audit of the voting machines to be complete. He accused Bishop of "jumping the gun" by calling for a re-count so early in the process.
"No one is questioning the integrity of the machines," Ryan said.
In the Syracuse-area 25th District, where Republican Ann Marie Buerkle leads Maffei by about 700 votes, state Supreme Court Justice Brian DeJoseph ruled last week that each side may inspect all the absentee ballot applications. DeJesus has not yet ruled on Maffei's request for a hand re-count of every paper ballot; the parties are scheduled to be back in court Thursday.
Helen Kiggins, the Republican Commissioner of Elections in Onondaga County, the largest in the 25th District, said the new system shouldn't be considered the culprit.
"The closeness of the race happened because of the closeness of the race — not the paper ballots, which seemed to work pretty well overall," Kiggins said.