Appeals court rules on some Brookhaven ballots

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A Brooklyn state appeals court threw out three contested ballots Friday in an unresolved Brookhaven Town council race, but said 13 other votes should be counted.

It was not immediately clear whether the Second Appellate Division's four-page decision, released late Friday, will change the outcome of the race, in which incumbent Democrat Connie Kepert trailed Republican challenger Michael A. Loguercio Jr. by four votes in tallies before Friday's decision.

Lawyers for Kepert and Loguercio could not be reached for comment. Attorneys involved in the case have said they expected the decision would be appealed to the state Court of Appeals.

Friday's unanimous decision by a four-member appellate court panel was a mixed verdict for both sides. The court had reviewed a Dec. 10 decision by State Supreme Court Justice Carol MacKenzie, who threw out 11 of 22 ballots challenged by attorneys for Kepert and Loguercio.

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The appellate judges reversed seven of the decisions in which MacKenzie deemed ballots were invalid, and upheld her decisions on two defective ballots. The candidates did not challenge two other decisions finding ballots were invalid.

One ballot ruled valid by MacKenzie was deemed invalid by the appellate court.

The judges' decision cited previous court rulings that said ballots should be counted if a voter's intention is clear, even if the ballot is improperly marked. For example, the panel overturned MacKenzie's decision to toss five votes because voters had not properly filled in ovals next to candidates' names.

"Although the markings on these ballots did not strictly comport with the instructions for marking the ballot, they clearly represented each voter's choice," the judges wrote.

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