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Ten months after the Erie County Democratic Party plunged into one of its most bitter internal battles ever, party faithful finally are about to decide who will lead them.

At 7 p.m. Wednesday, more than 2,000 members of the Erie County Democratic Committee are slated to meet in Shea's Performing Arts Center to choose between incumbent Chairman G. Steven Pigeon and challenger David J. Swarts, the county clerk.

But even that time and place are now the subject of court action, with the Swarts faction filing suit in State Supreme Court on Monday seeking to delay the meeting.

State Supreme Court Justice Christopher J. Burns refused this morning to sign a temporary restraining order sought by Swarts but promised a decision by the end of the day after an afternoon hearing.

"You will have a decision today," Burns assured both sides.

Burns told attorneys he was "reluctant" to issue a restraining order when Swarts sought it Monday because he didn't want to interfere with party preparations for Wednesday's voting.

At stake is the power, prestige and patronage available to the leader of upstate New York's largest concentration of Democrats. Also at stake is Pigeon's ability to have a major say at Saturday's judicial nominating convention, when Democrats from throughout Western New York will gather in Buffalo to choose four candidates for State Supreme Court.

And it appears that the Wednesday gathering will reflect all the rancor of the long battle, with both sides claiming victory and both sides claiming the soul of the party.

"If the vote were held today and it were fair, we would win," Swarts said. "But we want the election to be fair, we want a secret ballot and we want to be part of the process."

Countered Pigeon: "I am very confident that the people who have worked with me for the last four years have faith in my leadership. And there's no way they're going to win without major defections."

What now brings the dispute to a head are the results of last week's primary elections, when Democrats across Erie County voted for members of the county committee along with candidates for public office. Each of those committee members will arrive at the meeting backed by weighted votes determined by the strength of their district's Democratic vote in the last gubernatorial election.

Both sides are claiming major victories in those contests, emphasizing that strength in a flurry of phone calls and mailings in the hours before the vote. Combined with efforts to win over those committee members who ran unchallenged in the primary, Swarts and Pigeon both say they are in a position to win.

Swarts points to major gains in Amherst, Tonawanda, Clarence, West Seneca and other big suburbs. He claims to have won 70 percent of the contested races in the towns, and 55 to 60 percent of contested races in Buffalo.

Major elected officials pledged to Pigeon in the judicial nominating contest lost their elections, he said. They include Legislature Chairman Charles M. Swanick, Legislator George Holt, and Council Members Betty J. Grant, Barbara Miller-Williams and Charley H. Fisher III.

Though several major names pledged to him also lost, Swarts says he demonstrated his own political muscle.

"We have the numbers to win this thing," he said. "The question in my mind is: Will it be fair?"

To that end, Swarts said he has not only asked state Chairwoman Judith Hope to referee the meeting, but he also has filed suit in an action to be heard today before State Supreme Court Justice Christopher J. Burns. Swarts charges that the official meeting notice failed to notify committee members of his proposal for a secret ballot and it did not contain a proper financial report.

If his claim is upheld, it could delay the reorganizational meeting until after Saturday's judicial nominating convention, and inject even more uncertainity into the process.

Pigeon, however, dismisses the claims of the lawsuit as much as he dismisses Swarts' claims of major gains in the committee races. He said Swarts is automatically counting committee candidates who opposed his candidates but who might not necessarily oppose him.

In addition, he said his candidates -- backed by Mayor Anthony M. Masiello and most other elected officials -- scored big wins in the City of Buffalo and Cheektowaga. He estimates he controls 75 percent of the Buffalo vote, 80 percent in Cheektowaga, 100 percent in Lackawanna, and 60 percent in Hamburg.

Swarts contests those percentages, but Pigeon stands by them.

"The only place they have the margin is in Amherst and West Seneca, but I did well in the districts with the weighted votes," he said, labeling the Swarts claims "all smoke and mirrors."

He also said Swarts is assuming that he will win many of those committee candidates who were uncontested.

Pigeon acknowledges, however, that Swarts scored gains in the separate contest for delegates to the judicial nominating convention -- where the county clerk estimates that in conjunction with outlying counties, he will control the convention to the point of throwing it "open" to competing judicial candidates.

And he believes by the time the convention is held on Saturday, he will be re-elected as chairman -- increasing his ability to "build consensus."

Pigeon also continues to reject Swarts' call for a secret ballot, saying delegates to the committee meeting should vote in the open.

News Staff Reporter Matt Gryta contributed to this report.

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