WATERTOWN — One, three or none — those are the options currently facing the Jefferson County Board of Elections for the number of candidates on the November ballot for city mayor.
Jeffrey M. Smith was the clear top vote-getter in the non-partisan mayoral primary, but after counting absentee ballots candidates Cody J. Horbacz and Allison I. Crossman tied exactly at 598 votes each. Because the city is governed not under state election law, but a special, non-partisan election law, it is unclear what should happen, and the decision may well be decided in court.
“There’s no definite answer for our office, because it’s not under election law,” said John W. Conklin, spokesman for the state Board of Elections.
The normal procedure in a partisan primary under a tie is that the local party committee decides on the candidate. In a non-partisan race, there is no party that can make the decision. Mr. Conklin said there could be three candidates — Mr. Horbacz, Ms. Crossman and Mr. Smith — or one — Mr. Smith alone.
“It’s whatever both commissioners decide,” Mr. Conklin said, adding that whatever decision they made would likely be challenged in court.
The issue is that the Republican Commissioner, Jude R. Seymour, thinks they only have a mandate to certify Mr. Smith — although he expects a court will settle the matter — and the Democratic Commissioner, Babette Hall, wants all three candidates on the ballot.
The local law reads “the board of elections shall certify under the hand of its secretary or commissioners the names of the persons who received the largest and next largest number of votes for mayor.”
Ms. Hall thinks the plural — persons — means two people who received the “next largest” numbers of votes can be on the ballot.
The issue is complicated by the fact that Mr. Smith is registered as a Republican, as is Mrs. Crossman, while Mr. Horbacz is a registered Democrat. The fact it is a holiday week does not help, either — the only legal counsel the commissioners have been able to receive is from a single attorney, Brian Quail at the state Board of Elections, who is a Democrat.
“He would recommend putting all three onto the November election ballot,” Ms. Hall said.
Mr. Seymour does not feel he is in a position to make the decision.
“We received feedback from one Democratic lawyer from the state,” he said.
As an unelected partisan commissioner, Mr. Seymour thinks the decision should be out of his hands.
“Understand I am not the person to certify this in totality,” he said.“It’s time for an independent arbitrator to decide the correct course of action.”
A court case would likely have to be brought by one of the candidates, but if Mr. Seymour and Ms. Hall cannot certify the results of the election there may be no mayoral candidate on the fall ballot — which would likely trigger a legal challenge from someone.
Jefferson County Democratic Chair Jon Hall said Wednesday that the failure to certify all three candidates was a partisan decision on Mr. Seymour’s part — by only agreeing to certify Mr. Smith, he was excluding Mr. Horbacz. Mr. Hall said after speaking to Ms. Hall — no relation — that he thought all three candidates should move forward.
“He’s inserting partisanship into it,” Mr. Hall said. “What election law says, and what common sense says, is all three should go forward.”
Ms. Hall did not ascribe partisan motivations to Mr. Seymour, nor did Mr. Horbacz, when reached for comment.
“I fundamentally reject Mr. Hall’s assertion that I am blocking anything,” Mr. Seymour said.
Mr. Horbacz for his part is demanding a hand-recount of the ballots, as some registered blank on the voting machine. If there are any ballots marked in a way the machine could not read, Mr. Horbacz argues, that could clear things up — one way or another.
“They should be able to agree there should be a hand count,” he said Wednesday.
Both Ms. Hall and Mr. Seymour agree that they would not do a hand recount unless ordered by a court. Ms. Hall said the machines are carefully calibrated and checked and a recount would set a precedent for future candidates. Mr. Seymour mentioned the issue of precedent and added that there is no provision requiring a hand recount in city election law.
Ms. Crossman declined to say how she felt, but said she would make a decision soon.
“I don’t have a lot to say at this point,” she said. “The voters need to have their wishes ,,, respected on the ballot this fall.”