Attorneys for Republican Michael A. Loguercio Jr. are challenging parts of a state court ruling throwing out three ballots cast in his race for Brookhaven Town board -- including one ballot that would be invalidated because of "swirls" alongside a voter's signature.
Loguercio's attorneys, in an 18-page filing on Monday, said a ruling by the state Appellate Division in Brooklyn last month set a bad legal precedent and the one ballot with the markings should be counted.
"It is respectfully submitted," the attorneys wrote, ". . . that the addition of a 'smiley face' or some other such mark should not invalidate a perfectly valid signature."
The ballot was one of three in the race that were ruled invalid by appellate court judges. The court also ruled that Suffolk election officials should count 13 other disputed ballots in the 4th Council District race between Loguercio and Democrat Connie Kepert.
Loguercio led by four votes in unofficial tallies before the appellate court decision. It is unclear which candidate the disputed ballots were cast for. Democrats and Republicans have both said they believe the decision may ultimately lead to Kepert winning the race.
No winner has yet been declared. Kepert, whose fourth term on the town board expired on Dec. 31, said Monday she was "still expecting to win."
Attorneys for Loguercio have asked the Court of Appeals, the state's highest court, for permission to appeal the appellate court decision. The Court of Appeals could decide as early as Tuesday whether to consider Loguercio's request, a Court of Appeals spokesman said. The appellate court decision would stand if it is not reviewed by the Court of Appeals.
A State Supreme Court justice ruled on Dec. 10 that 11 of 22 ballots cast in the race should be discounted because of questionable markings and other problems. Parts of that decision were overturned by the Brooklyn appellate court on Dec. 20.
The court dispute has included debates over the validity of so-called "tadpole markings" on ballots. Another vote was thrown out because the voter had written a statement referring to consumer advocate Ralph Nader.