LIVINGSTON COUNTY — Wednesday, September 19, was a day unlike any other in Livingston County electoral politics. A roomful of Board of Elections officials, lawyers, Republican Party officials and representatives, and two candidates gathered to observe the counting of absentee ballots in the primary contest for the Republican nomination for District Attorney. By local standards the scene was a historic, epic battle in a campaign that will ultimately be decided in the place where the two competitors and colleagues hope to work: the courtroom.
The morning began officially at 10:00 am with the extremely close election day results posted as a starting point. The opening tally showed Geneseo attorney and challenger Steve Sessler leading former Assistant District Attorney Eric Schiener, the Party-endorsed candidate, 1,792 to 1,773, with Sessler holding a margin of 19 votes. On the table, in a secured lockbox: 189 absentee ballots. At the conclusion of the day’s events, at around 3:00 pm, the tally stood at a dead heat, with each candidate claiming 1,879 votes.
Undecided. Four additional ballots were the subject of formal challenges that remain to be resolved. Procedures for this extraordinary scenario require a judge’s decision.
The two candidates have taken very different routes in their careers and their lives that led to today’s dramatic scene. Schiener’s has been the more traditional road. He worked for 12 years in the District Attorney’s office under former District Attorney Tom Moran and participated regularly in Republican politics and committee life, culminating in this year’s endorsement by the Republican Party as their preferred candidate for District Attorney. Sessler’s path has been quite different. His legal career began in the U.S. Marines, where he spent a number of years as a JAG prosecutor. He first practiced law as a civilian with the New Hampshire Division for Children, Youth and Families, mainly prosecuting child abuse and neglect cases. He settled in Livingston County, where his wife grew up, in 1995. He established a law practice in the County as a defense attorney, and was elected Livonia Town Judge ten years ago, in 2002.
The scene at the counting-of-the-ballots drama reminded observers, perhaps inevitably, of the Florida spectacle from the contested 2000 Bush v. Gore election. Sessler sat across from the board of election officials alongside Eric Schiener and his lawyer, Robert Shaddock. Each ballot was opened in turn and inspected, in turn, by all parties. They carefully examined details including the envelope seal and postmark dates, and scrutinized each piece of paper for any disqualifying marks.
“I sat in that room today with thoughts of my kids, who have had a front row seat for the ultimate lesson plan on the importance of voting,” Eric Schiener said afterwards. “Needless to say, the Schiener kids will always know that every vote matters, and there is never an excuse for not voting. I remain confident and optimistic that I will be the Republican nominee when this roller coaster finally comes to a complete stop.”
Most of the 25 districts counted showed tight margins comparable to the election day counts. The only districts where one or the other candidate clearly dominated in the absentee ballot counts were each person’s home district. Schiener dominated in Geneseo, 27-8. Sessler dominated in Livonia, 21-6. In one unusual tally, there were over 20 absentee ballots cast in Nunda, a surprisingly large number given the size of the Nunda polling district.
“It is my hope, and our campaign’s hope, that voters will recognize today that voters have a real voice, and they can speak and be heard this November. Every vote really does count,” said Sessler.
The four ballots set aside for a judge to rule on were singled out for different reasons. Two of the ballots were challenged on the basis of the same technical issue, but they are for opposite candidates, so however the technical matter is decided, the two will cancel each other out and there will be no net effect.
The other two contested ballots are different, from the first two and from each other. These two ballots could make the difference in the election outcome. The third disputed ballot is known to be a vote for Sessler. It was challenged by the Schiener camp after they noticed that it was marked with whiteout. The significance of the whiteout and the validity of the vote is for a judge to decide.
The fourth disputed ballot is currently unopened because it was post marked a day late. It is not known who that vote is for, or even if the voter cast a vote for a particular candidate at all.
If the third and fourth disputed ballots are both accepted and the fourth vote is for Sessler, then Sessler wins the Republican nomination by a two-vote margin, and goes on to face the sitting District Attorney, Democrat Greg McCaffrey, in November.
Another possibility: if the third ballot is rejected and the fourth is accepted, and the fourth is a vote for Schiener, then Schiener wins with a 1-vote margin and goes on to face McCaffrey in November.
The most interesting possibility is if the third and fourth disputed ballots are both accepted and the fourth vote is for Schiener, with the final result still a tie. In such an event, the rules provide for a highly unconventional solution: the two candidates decide the winner by their choice of one of two methods: either a coin toss or the cutting of a deck of cards.
As far as the GeneseeSun.com has been able to determine, there is no provision in the rules for what would happen in the event that the two candidates disagree on the choice between coin toss or card deck. Perhaps arm-wrestling will make a comeback. In any case, a viral video may well be in the offing, and Livingston County could yet find itself in the national spotlight.