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Candidates end hearings, agree to count paper ballots

A settlement reached Friday between two contenders for the 3rd Ward Council seat in the City of Tonawanda could pave the way for one of them to take office next week.

Incumbent Richard Slisz appeared to have lost the seat to challenger Augustine R. Beyer by just one vote in last November's election, a result so close that the seat has been unofficially vacant since then. The count of polling place machine ballots plus absentee, military and affidavit ballots showed Beyer had received 435 votes to Slisz's 434 in the Nov. 8 contest.

Meanwhile Slisz, through his lawyer, Peter Reese, had been seeking an unprecedented inspection of the paper ballots. A week ago, the Appellate Division in Rochester reversed State Supreme Court Justice Timothy J. Walker's previous decision turning down Slisz's request for an audit, reinstating Slisz's petition and ordering further proceedings.

Then on Friday, the parties reached a stipulated settlement to have a recount, according to Reese.

"It was agreed by all parties that this is not precedent-binding on anyone in the future," Reese said by phone Friday. "We just agreed, pretty much out of exhaustion, that we would just go and count the damned ballots already rather than to just continue to fight this legally," he added.

Neither Beyer nor his attorney, Emilio Colaiacovo, could be reached Friday to confirm the settlement.

About 30 ballots out of the 900 cast did not register a vote for either candidate in the race, according to the automated results from the election. At issue were two ballots that ultimately went to Slisz. One had been stuck in a machine. The other, in which a vote appeared to be cast on Working Families lines, which was one of Slisz's lines, had the oval circled instead of filled in. As a result, it was scanned by the tabulating machine as a null vote but, according to Reese, was clearly a vote that was meant to be cast for Slisz. As a result, Reese said, his client actually won the contest by a vote of 436-435.

"This a total vindication of my argument that the [voting] machines are flawed and that they cannot read and scan all valid votes and, therefore, when the election results are close, there must be recounts," said Reese.

Currently, under state election law, there are no provisions to justify a hand count when races are so close, he added.

"In fact, as we speak, no court has ever ordered a recount [when the vote totals are so close], and this particular case cannot serve as a legal precedent for future cases. However, it demonstrates that there are serious problems with the vote scanning system which must be addressed by either the courts or the New York State Legislature," Reese said.

Reese said he anticipates that Beyer will concede the election when the parties appear again in court on Tuesday.

"The commissioners agreed that we won. [Beyer] has a huge uphill battle [if he seeks to contest it], because the final ballot put us over the top. The voter consistently circled the target area [on the ballot], but did not fill in the target area," Reese said.

"Under state regulations, that was clearly a vote for my client."