An apparent voting machine malfunction skewed the results of the Sept. 25 Republican mayoral primary, but not enough to change the winner, the Niagara County Board of Elections said Wednesday.
But Mayor Mary C. Kabasakalian, who lost the race to David J. Burgio by 85 votes according to the board's figures, said she is considering legal action.
"If there are errors, who knows how many errors there are?" Kabasakalian asked. "I will consider what avenue to take to make sure the rights of all North Tonawanda voters are protected."
The problem arose in Election District 4 of the 3rd Ward, where a voting machine seems to have registered 25 fictitious votes.
The poll book and tally sheet show 96 Republicans signed in to vote at that polling place in Ohio Elementary School, but when the machine was checked, it tallied 121 votes for mayor: 74 for Burgio and 47 for Kabasakalian.
Election Commissioners Nancy L. Sharpe and Michael J. Norris certified the results final on Oct. 5 upon advice from Albany, even though their tally of 1,038 for Burgio and 953 for Kabasakalian included the figures from the erroneous machine.
The result left Kabasakalian with only the Liberal Party line giving her a chance for a second term as mayor. Burgio will have the Republican and two minor lines, while Daniel E. Brick is the Democratic nominee and has three minor lines. There is also an independent candidate, Matthew J. Bova.
The commissioners said in a news release that they learned of the snafu Oct. 3 while recanvassing the primary results. However, both candidates said they didn't learn of it until Tuesday, when they were called to a meeting with the commissioners.
Burgio was unhappy with the delay but otherwise unperturbed. "I didn't think a lot of it," he said. "I still won the primary."
"I was speechless," Kabasakalian said. "I'm just numb."
Sharpe said if Kabasakalian wants to sue, she has until Oct. 25, 20 days after the Board of Elections certified the primary results.
Lee Daghlian, spokesman for the state Board of Elections, said Albany officials advised Norris and Sharpe to certify the results as final even though they were clearly inaccurate because the mistake wasn't enough to change the winner.
"That doesn't mean they're not supposed to find out what happened," Daghlian said.
The commissioners inspected the machine and all the election inspectors' forms connected with it and found the machine had no votes registered on its counter before the polls opened Sept. 25. The votes cast before the polls were closed on the original primary day, Sept. 11, had been zeroed out.
Making the problem stranger was that two other GOP primaries on the same machine, for city judge and alderman at large, did not register vote totals higher than the number of voters who signed in. Only the mayor's race was affected.
Sharpe said, "We haven't touched the machine yet because if there's litigation, it would be evidence."
Norris said once the matter is settled, "We will have it thoroughly inspected and tested before the general election."
Burgio said: "It's a mechanical thing. I guess you've got to understand that things break."
Kabasakalian said she had no evidence of fraud but declared, "I think it's really shameful to see such un-American acts committed when we're united against evil halfway around the world."
Daghlian said: "I would presume she could ask for a revote. Judges can say what they want, but I don't think there's any basis for that here."