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Supreme Court, Nassau County, December 8, 2010
APPEARANCES OF COUNSEL
Jaspan Schlesinger LLP, Garden City (Steven R. Schlesinger of counsel), for petitioner. Bee Ready Fishbein Hatter & Donovan, LLP, Mineola (Peter Bee and Kenneth A. Gray of counsel), for Jack M. Martins, respondent. John E. Ryan, Mineola, for Republican Commissioner of the Nassau County Board of Elections. Thomas J. Garry and Robert McDonald, Mineola, for Democratic Commissioner of the Nassau County Board of Elections. Leventhal & Sliney, Roslyn (Steven G. Leventhal of counsel), for Joseph Mondello, Chairman of the Nassau County Republican Committee. Robert McDonald, Mineola, for Jay Jacobs, Chairman of the Nassau County Democratic Committee.
{**30 Misc 3d at 845} OPINION OF THE COURT
Ira B. Warshawsky, J.
Over a more than 30-day period, employees of the Board of Elections of Nassau County, attorneys for the Republican and Democratic Commissioners, attorneys for the political leaders of each party, Joseph Mondello and Jay Jacobs, and the attorneys for the incumbent, Senator Craig M. Johnson, and the challenger, Jack M. Martins, have participated in an audit of voting machines, a challenge to affidavit and absentee ballots (before opening the envelopes), and a challenge to the
face of the ballots once they were open.

Veracity Ballots
The earliest issue brought to the court's attention was a claim by the Democrats that the Republicans had fraudulently induced absentee ballots by sending letters with applications to prospective voters. This group of ballots was labeled "Veracity{**30 Misc 3d at 846} Ballots." After oral argument, the court denied counsel's application to preclude these ballots from being counted and they were ordered to be opened. (Matter of Kolb v Casella, 270 AD2d 964 [4th Dept 2000].) There was nothing in the letter that would induce a fraudulent application, and, if a voter lied to get an absentee ballot, it was not caused by the letter.
[*2]Two-Hundred Eighty-Three Unopened Ballots
On November 29 or 30, 2010, the court learned that there were approximately 283 unopened affidavit ballots that had not been brought to the court's attention; the attorneys were aware of them, just not the court. Of these, 170 were consented to not be opened. The balance of 113 had been found to be unregistered as of election day by a bipartisan research team.
The Republican Commissioner agreed to follow the recommendations without further review. The Democratic Commissioner had never looked at these envelopes, or so the court was told. He had been too busy since election day to look at these ballot envelopes. He was given until the morning of December 1, 2010 to consider what position he wished to take on these affidavit ballot envelopes.
On December 1, 2010, counsel for the Democratic Commissioner stated that he wanted 48 of these opened because he believed that their registration had been canceled in error, as he indicated to the court. Of those he wanted the court to open, 38 were registered Democrats, two Republicans, and the balance of eight registered as blanks or independent. Mr. Ryan, counsel for the Republican Commissioner, expressed "shock" at hearing these numbers.
The court ruled on December 1, 2010, pursuant to the case of Matter of Mondello v Nassau County Bd. of Elections (6 AD3d 18 [2d Dept 2004]), that it did not have the power after election day to reinstate/reconstitute a voter's registration who had been removed from the registered role of voters by the Board. More specifically, pursuant to Mondello:
"In a proceeding pursuant to Election Law

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