A state Supreme Court Justice’s ruling in the contested Town of Niagara council race has left the two challengers tied — again.

Whether Republican Jenelle L. Messer or Democrat John P. Adams takes a four-year seat now depends on what votes are contained in two unopened ballots, and whether Adams is successful in the appeal he said he plans to file.

Niagara County attorney Claude Jorge, representing the county’s Board of Elections, said the ballots will likely be opened today or Monday, due to tight deadlines for further court action.

But Adams said his appeal will seek to have the tying vote for Messer thrown out and to keep the two affidavit ballots from being opened.

If not, Adams said, the race would likely end in a tie, leaving the seat to be filled by a Council vote. One unopened ballot is from a registered Republican and the other from a Democrat, he said.

“The thing that I fear is that if I do not take this to the appellate court ... it would be business as usual,” Adams said. “The town voted for change, and we should give them that.”

Messer’s attorney, Edward Perlman, said he and Messer were “extremely satisfied” with the decision of Justice Ralph A. Boniello III. He also said an appeal by Adams would likely not stop an opening of the ballots.

Adams was 14 votes behind Messer until Nov. 18, when paper ballots were counted and the two were tied at 810 votes each.

Messer soon challenged four ballots that were rejected by the Board of Elections — two opened absentee ballots, both with Messer votes, and two unopened affidavit ballots.

But she didn’t challenge an absentee ballot with a rip down its middle that the Board’s commissioners split on. That meant the ballot’s vote for Adams stood, putting him in the lead.

One of the other absentee ballots was dismissed because of markings on multiple boxes for the Sheriff’s race and another because of an extra marking with the word “yes” written above it.

Boniello wrote that the elections law is “clear” that the markings on the Sheriff’s line “invalidates the vote for that office but does not invalidate the entire ballot.”

The other absentee ballot, however, was properly rejected, Boniello ruled, because the word “yes” could be used to identify a voter.

Deputy commissioners at the Board of Elections refused to open the two affidavit ballots, one because of a name change and the other due to an address change.

But Boniello ruled that both voters had properly documented both changes, and the ballots should have been counted. The Justice noted in his ruling that “at least one of the Election Commissioners acknowledged this at trial” — Adams said that was Republican Commissioner Scott Kiedrowski.

Democratic Elections Commissioner Nancy L. Smith said Thursday night that the Board would have to review Boniello’s decision today before scheduling an opening with both candidates.

She noted, however, that Boniello’s court still has the ballots.

“We can’t open something right now that we don’t have,” Smith said.

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