A verdict is expected today in the lawsuit that sought to reverse results of the North Hudson supervisor race in State Supreme Court.
Testimony wrapped up Wednesday afternoon, after Acting Supreme Court Justice Richard Meyer dismissed two of the suit's absentee-ballot challenges and promised to rule on the third — that absentee ballots were altered — by this morning.
Losing candidate Hugh Myrtle, a Democrat, filed the litigation after he lost, 74-72, when the five absentee ballots in the race were opened.
All five votes were cast for his opponent, Republican Ronald Moore, reversing the machine count of 72-69 that had been in Myrtle's favor on Election Night.
Meyer dismissed challenges to the competency of a nursing-home resident to vote, and tape used to secure two ballots instead of moistening the envelope flaps.
"Do you have anything to substantiate your claim that the use of tape to close a ballot envelope is not appropriate?" Meyer asked Myrtle's counsel, Stephen Rehfuss of Latham.
"It's really taking all the evidence as a whole," Rehfuss said. "It certainly raises inconsistencies."
Two colors of ink
Throughout the hearing, Rehfuss had attempted to show that three of the absentee ballots submitted to the court had been changed or substituted by someone and were not the same ballots Myrtle examined at the Nov. 16 recanvass held by the Essex County Board of Elections.
Myrtle said two colors of ink had been used to mark votes on the ballots.
"The blue ink and also the black ink raised a question in my mind," he said.
Moore's attorney, Brian Breedlove of Clifton Park, said nothing in State Election Law precludes the use of two colors of ink.
"There is no law someone can't go in and use two different pens to vote," Breedlove said. "There is not a scintilla of evidence of any fraud at all."
County Republican Election Commissioner Derinda Sherman took the stand in the second day of the hearing, asked whether she or anyone else she knew of had tampered with the absentee ballots.
"We take the chain of custody very seriously," Sherman said. "They (absentee ballots) were secured without reservation. I know they were the same ballots."
County Attorney Daniel Manning III, representing the Board of Elections, questioned all six members of the election unit on the stand to ask if they had altered ballots.
All said they had not and knew of no one who had.
"They (absentee ballots) were in the possession of a Democrat and a Republican (election official) at all times," Democratic Deputy Commissioner Nancy Fink said.
The suit had also challenged the absentee vote of Clara Moses, a patient at Heritage Commons nursing home in Ticonderoga, alleging she was not competent to vote.
In dismissing that challenge, Meyer said Moses had not been determined to be incompetent.
"There has been no such evidence of the competency of a voter," he said. "Every person who is at least 18 on the day of the election is eligible to vote."
All of the absentee voters except for Moses signed affidavits stating they voted for Moore, Breedlove said.
If all three ballots are thrown out by the court, Myrtle would win the election by one vote.
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