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Suffolk Surrogate judge lawsuit widens to absentee ballot battle

Republican Surrogate candidate Tara Scully’s lawsuit to block Democratic foe Theresa Bryan Whalen from getting the Conservative Party line also turned into a battle between Republican and Democratic election commissioners over sending out 20,000 absentees ballots.

The issue came to light after a hearing in which state Supreme Court Justice David Reilly ordered the two commissioners to rule by 5 p.m. Tuesday on whether Whelan, supervising judge of the Suffolk Family Court, should be denied the minor party line.

Democratic Elections Commissioner Anita Katz said she was ready to make a decision Monday and absentees should go out immediately. “Every day we get calls from people leaving on vacation and board workers worked all weekend to finalize these absentees. They should be mailed,” Katz said.  “If the court ruling changes, we send out more ballots, but people are leaving now.”

Nicholas LaLota, Republican elections commissioner, said he has not yet seen the court order, but added: “We don’t want get it wrong. We have to strike a balance between sending out the correct ballot and giving voters enough time to mail their ballot back.”

Late Monday, the two commissioners agreed that the objections against the first Conservative substitution to install Whelan were invalid, because legal papers were not properly served on several parties.

Later when Conservatives filed revised papers naming Whelan as their candidate, the deadline to file new objections became  5 p.m. Tuesday. Objectors also can meet the deadline by mailing objections postmarked on Tuesday. “We have not ruled on those objections today because the board had not received the objections,” he said.

The board has already sent out 2,000 military ballots and LaLota acknowledged they can only wait until Friday to send out the rest. “Whatever the law of the land is Friday we’ll have to go with that,” LaLota said, adding it will give voters 18 days to get the ballots and put them in the mail by Nov. 5.

Reilly said he will make a decision by Friday, though whatever ruling made could still be taken to the Appellate Division in Brooklyn next week.

Scully and Conservative committee member Richard Kaufman challenged the legality of Conservatives’ Sept. 24, decision to name Whelan to replace their earlier Surrogate judge choice, Family Court Judge  Deborah Poulos. They claim the party’s executive committee had no power to name Whelan after the Sept. 12 primary, until after the Sept. 26 convention when newly elected committee members could pick a new executive committee.

Vincent Messina, Conservative attorney, said the party was authorized to act, given a four-day deadline for filling the Surrogate nomination so the party would not be without a candidate. In light of the lawsuit, Messina said executive committee, unchanged by the convention, again named Whelan as the candidate under another provision of state election law which sets a 14-day deadline.

However, Stephen Martir, called the second bid “untimely” because the party acted too late.

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