City Councilor Melissa Mazzeo observes the counting at one table on Monday. Mazzeo had requested the hand count of ballots after losing the Nov. 5 mayoral election.
PITTSFIELD, Mass. — Monday's mayoral recount handed Mayor Linda Tyer two more votes bringing her total over Councilor at Large Melissa Mazzeo to 531.
But while Tyer declared the election settled, Mazzeo is considering legal action based on the same premise that prompted her call for a recount of Nov. 5's mayor election: irregularities in the voting and ballots.
"It's just nonsense. And the results from today have proven that it's nonsense," said Tyer after the results of the daylong hand count were tallied. "Throughout the course of the day today, the Mazzeo campaign protested every single one of the absentee ballots that had been voted for Tyer. So essentially, they are attempting to disenfranchise voters who voted for me by absentee ballot."
Mazzeo's attorney, Andrew Hochberg, said the determination to appeal the election and move forward with legal action would occur over the next several days.
"I have prepared and filed a protest regarding the irregularities we noticed this morning," he said shortly before the recount ended. "I gave that to Mr. [Stephen] Pagnotta, who is the city solicitor, and one copy for Mayor Tyer and her team."
The final count was 6,185 votes for Tyer and 5,657 for Mazzeo, exactly what she had on Nov. 5. The hand count of the optically scanned ballots did find 12 more write-ins and 17 fewer blanks, and three fewer votes overall, at 11,961. Fourteen extra blank ballots were apparently found with marked ballots; the mayor speculated they had been "scooped up" during cleanup election day and accidentally placed in the wrong transfer case.
Hochberg said Mazzeo's team of observers had gone over the procedures on Sunday. He said they were there to ensure the ballots were correctly handled from start to finish and had been there since 7:30 a.m. to observe the transfer of the ballots from the registrar's office to the City Council Chambers upstairs.
There were a number of irregularities in the ballots, he said, pointing to how the clear plastic bins holding the ballots from each precinct were secured.
"These boxes have to be kept under lock and seal so if they're under lock and seal, they're sealed on both sides," he said. "So there were three boxes from the precincts that had questionable seals, either broken missing or another issue."
Transfer bags for unused ballots also had missing numbers or tags, raising concerns about their security, he said, and he also referenced the number of absentee ballots and blanks in some wards.
He said the written protest he filed with the city challenges the three ballot transfer boxes and the transfer bags of the unvoted ballots because of the lack of security.
"I'm preserving our rights to take a future step," Hochberg said in the reason for challenging the ballots in sum rather than singular ballots challenged during the recount. "This is just an overall challenge and that can be dealt with if there's a legal action be filed."
In her request for a recount and in communications with the secretary of state's Elections Division, Mazzeo had stated an "individual closely related to the Tyer Campaign" had had inappropriate proximity to the ballots and had been complained about. She also pointed to "an abnormally high" number of absentee ballots.
The councilor was present during the counting but referred any questions to Hochberg.
The recount began at about 8 a.m. with counters sitting at long tables in chambers doing each ward one at a time. A caution tape kept press and public away from the count but each campaign's observers were allowed to watch the proceedings close up and challenge ballots. The counting ended shortly after 5 p.m.
Tyer said she wasn't concerned about presumed irregularities "because the recount has validated the results from Nov. 5."
"Those ballots have been protected from the moment they left the precincts on Nov. 5 and they've been locked in the vault until today," she said. "And despite the seal situation, the results have been validated."
The mayor said she has not been in contact with the secretary of state's office but assumed the city clerk and city solicitor have. As for any potential legal action, Tyer said she had nothing to add at this point.
"I don't have any preliminary thoughts about it because I can't possibly anticipate what those legal actions will be," she said. "But I can tell you that I and my team and my campaign will vigorously defend this election as far as it relates to our work, and I know that the city solicitor will work to represent the city clerk's office and the city of Pittsfield."
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