All across Western New York this past week, public office-holders took their oaths and assumed their duties.

In the City of Tonawanda, however, the City Council’s Third Ward seat remains vacant, per the order of Judge Timothy J. Walker of the New York State Supreme Court.

It is the only unresolved race in Erie County, and its resolution hangs on how well the new optical scanner voting machines do in registering the intentions of voters.

Walker heard a suit brought by Democrat Dick Slisz, the incumbent in the Third Ward, who appears to have lost the seat to Republican Augustine Beyer by one vote out of 900 cast. At the heart of the case brought by Slisz’s attorneys, Peter Reese and Michael Kuzma, are two questions, one pertaining strictly to the race and one with much broader implications. First, there are 31 ballots cast in the race that were discounted as “blank, void, or scattering,” which is to say that they were either unmarked or marked in such a way as to be uncountable by the electronic scanning machines the county now uses to tally votes. Slisz’s attorneys have asked that there be a manual audit of at least those 31 ballots, if not all 900 votes, in case the intentions of voters might be more apparent to an human eye than to a computer. Walker ruled that the Erie County Board of Elections is under no obligation to review those ballots, because a required audit of three percent of ballots cast countywide revealed no irreconcilable errors in the machines’ tabulation of votes.

Which brings us to the second question. Attorneys for Slisz and Beyer, as well as Walker himself, observed the conduct of the three percent audit at the Board of Elections. Slisz’s attorneys observed that the audit was limited to determining whether the machines had accurately tabulated ballots that were filled in correctly—that is, the voter filled in the oval beside the name of one candidate. But state law is much more lenient in what constitutes a valid vote. Where a voter’s intentions are clear—e.g., the voter circles a candidate’s name, or circles the oval beside the candidate’s name rather than filling it in, or marks an X through the oval—state law requires that vote to be counted accordingly. Slisz’s attorneys argue that the three-percent audit did not address the inability of the scanning machines to count such votes, whether they accrued to Slisz or to Beyer.

A recent study by New York University’s Brennan Center for Justice affirms that the number of ballots discarded as invalid in New York State’s 2010 governor’s race was higher than ever before and attributes that increase to deficiencies in the new machines’ ability to determine a voter’s intentions. The possible implications are clear: Unless state election law is changed to make it easier to acquire a manual recount in a close election (and what can be closer than one vote?), the new voting machines, purchases in response to the Help America Vote Act, may do more harm than good.

Initially, Slisz’s lawyers were granted a stay on certification of the vote in favor of Beyer, pending the completion of the three-percent audit. (None of the nine machines used in the Third Ward race were chosen to be part of the three-percent audit.) Upon observing the nature of the audit, Slisz’s attorneys continued to push for a manual recount. Walker ruled against Slisz, dismissing the case. Slisz’s attorneys filed an appeal, which was granted by Judge Salvatore Martoche; the appeal will be heard on January 23. An offer to settle the case with an audit of just the 31 “blank, void, or scattering” ballots was rebuffed by election commissioners.

In the meantime, the seat remains vacant. State law and Tonawanda’s charter say that Slisz, the incumbent, should remain in the seat until the vote is certified and one of the candidates is sworn into office. But on January 3, Walker issued an order declaring the seat vacant. “He basically threw our city charter in the garbage,” Council President Carl Zeisz told the Tonawanda News.