Losing Senate candidate Johnson files appeal

The lawyer for losing State Senate candidate Craig Johnson of Port Washington filed court papers with the Appellate Division late Thursday arguing that a lower court should have ordered a hand count of all 85,000 ballots cast in the race.

Justice Ira Warshawsky of State Supreme Court in Mineola had declared Republican Jack Martins, the mayor of Mineola, the winner last week by 451 votes over Johnson, the Democratic incumbent.

"This appeal, at its core, involved the Appellants' application for a manual hand count . . . of all paper machine ballots cast for the office of State Senator, District 7, in the County of Nassau in the 2010 General Election," attorney Steven Schlesinger wrote in the 58-page motion.

Martins had 41,041 votes on election night to 40,626 for Johnson, a difference of 415, or less than half a percentage point of the total votes. The winning margin was 451 votes after some 4,000 absentee and affidavit ballots were counted in the weeks after the elections.

Schlesinger disputed some of Warshawsky's ruling on the paper ballots, and said the new optical-scan voting machines missed enough Johnson votes to affect the outcome. He noted that there were 3,876 ballots cast in the 7th Senate District for other races that left the Senate race blank.

Martins' attorney, Peter Bee, had argued in the lower court that there had not been a sufficient showing to warrant a hand count. He did not respond to a request for comment Thursday. His reply to the Schlesinger motion is due to be filed Monday morning.

The Johnson-Martins race was one of three key ones around the state that apparently ended with Republicans ready to regain control of the state Senate 32-30 when the 2011 session convenes Jan. 5.

The other two races have been resolved without threat of further court action, and the state's chief judge has ordered that any appeal has to decided by the Appellate Division no later than Wednesday and be received by the Court of Appeals by Dec. 20.