Bethlehem Town Board member and candidate for supervisor Sam Messina said Friday that he will seek to have the matter of a lawsuit involving the Working Families Party primary brought to the state's highest court in hopes of reversing a decision made by a lower appellate court Wednesday.
Messina said that paperwork will be filed today, Oct. 23, or Monday, and if the state Court of Appeals decides to hear the matter it most probably do so early next week, as ballots for the upcoming Nov. 3 general election cannot be distributed without the outcome of the race known.
The case involves 11 absentee ballots that are still sealed at the Albany County Board of Elections. Messina had filed suit against incumbent Supervisor Jack Cunningham and Democratic Elections Commissioner Matthew Clyne to have the ballots thrown out, asserting that the identity of the voters were not properly identified and that the absentee ballot applications violated election law because the voters were not registered when they signed them.
A state Supreme Court judge found merit with the latter argument and ordered the ballots be kept sealed. On Wednesday, however, an appellate court found that the argument was introduced too late for proper notice to be given to Cunningham and Clyne, and ordered the votes counted.
Messina said he feels the timeliness of his petition should not impact its veracity.
We think the merits of the case legally put us in a strong position, he said.
"There was no question here that all these voters were legitimate, authentic voters," he said. "This is a routine practice that never should have been questioned at all."
He also noted that without the WFP line settled, absentee ballots cannot be mailed out and machines cannot be set up. Absentee ballots must be postmarked by midnight on Nov. 2.
"Litigation is always problematic to the boards of elections because of the very short timeframe," he said. "It's definitely a problem."
Without counting the absentee ballots in question, Messina has 11 votes and incumbent Cunningham, who staged a write-in campaign for the line, has five. There are 28 voters in Bethlehem registered with the WFP.
Messina will appear on the Republican and Conservative lines, and Cunningham will appear on the Democrat and Independent lines.