ALBANY – A judge ruled the lawsuit filed by town clerk candidate Alison McLean Lane was not filed in a timely fashion and dismissed it without addressing the merits of the case.
After Judge Kimberly O’Connor ruled, she offered up her courtroom to the two Board of Elections commissioners and they began opening the some 177 absentee ballots filed in the Independence Party primary between McLean Lane and Julie Gansle.
The underlying legal questions, though, still exist and the judge could still rule on them at a later date.
Each side will have an opportunity to examine first the absentee ballot envelopes and then the absentee ballots to determine if they were gotten and cast in an appropriate manner. Ultimately, the same ballots could end up back in front of a judge.
But not until the counting process is complete since the attorney for McLean Lane, Nicholas Tischler, admitted to serving the two BOE commissioners a day after the judge-imposed deadline. He did say the merits still stand and asked for some leeway but the judge disagreed and bounced the lawsuit out of court.
“We have been relying on volunteers to get a lot of this done. Legal work is very expensive,” McLean Lane said after O’Connor ruled. “But we have a lot of information and we will be referring it on, probably to the District Attorney’s Office, and they can make an investigation as well.”
At the gist of McLean Lane’s complaint is the fact there were such a huge number of absentee ballots filed in the Independence Party primary compared to other years. In 2012 there were 450 total votes cast in all Colonie Independence Party primaries with 22 absentee ballots counted. In 2015, there were 346 total ballots cast in the primaries with 51 absentees counted.
McLean Lane had a 146-94 lead over an opportunity to ballot on Primary Day. She was endorsed by the party so her name appeared on the ballot but the GOP got enough signatures to open it up to a write in.
The lawsuit, based in part on a report written by an investigator hired by McLean Lane, alleged voters were improperly coerced into voting absentee by Republicans operatives working or volunteering for the Gansle campaign.
At least six voters were subpoenaed by the McLean Lane team and were in the courtroom ready to testify but didn’t get the chance after the judge tossed the complaint.
“I am disappointed our witnesses who had a story to tell about exactly what happened at the Board of Elections, and our witnesses who have a story to tell about how they were asked to fill out absentees, were unable to tell their story,” McLean Lane said.
While if the commissioners to agree, Jim Walsh, an attorney for Gansle, said the commissioners are supposed to be objective and that proof of fraud or other improprieties will ultimately needed rather than a “this is what I think happened.”