Attorneys are still eagerly awaiting a court decision on whether or not to conduct a recount of the City of Tonawanda’s Third Ward election results.

A decision by the state’s highest court still has not been rendered nearly a week after lawyers for both sides argued the matter surrounding November’s one-vote loss by incumbent Councilman Richard Slisz.

Emilio Colaiacovo, attorney for the apparent winner of November’s contest , Republican Augustine Beyer, said normally such decisions are issued sooner when elections are at stake.

“It is normally standard practice by the appellate division to expeditiously render a decision on election law matters,” Colaiacovo, who regularly handles election law cases for the Erie County Republican Committee, said.

“Normally in election law cases if you argue a case on Monday you have a decision by Wednesday or Thursday.”

He said the lapse of a few days is surprising, especially since the seat is the only election that still has not been certified in New York state.

“Because these election law cases are normally decided expeditiously, it means there is a substantive issue keeping the judges concerned,” he said.

Among the possible hang-ups, he said, is likely the state Appelate Court’s willingness to overturn a ruling by the state Supreme Court that initially denied Slisz a recount outright. Also there is the question of potentially ordering a recount of some or all of the 907 votes cast.

He and opposing attorney Peter Reese, who is representing Slisz in the matter, each called it a “case of first impression,” meaning no adequate precident exists to guide the court.

“I think basically we raised a huge number of issues in regard to problems with the new voting system,” he said, referring to the fact that absentee and affidavit ballots can be inspected upon re-canvassing, whereas undervotes — or ballots where no vote was registered — cannot.

He said he felt the court’s five judges took note of that reality, acknowledging the need for a “differential standard.”

 At the center of the case is whether or not election inspectors should be required to visually inspect 31 ballots where no vote was registered in the race. Slisz maintains that it’s possible some voters who improperly filled out ballots may have intended to vote for him.

With a one-vote victory margin, the greater question could become whether or not a hand recount of such ballots should be automatically warranted when a race is so close.

 An electronic audit of the voting machines has already been conducted and confirmed Beyer’s one-vote victory, though Reese noted that electronic audits don’t address the issue of ballots that were filled out improperly, in this case known as undervotes.

Any decision could set a sweeping precedent for state elections moving forward, especially regarding the current lack of protocol for authorizing hand recounts.

Colaiacovo, however, said the legal status quo requires what he called a “material discrepancy,” or in other words, proof of an error, in order to justify further exploration.

Since ballots improperly filled out but cast at the polling place aren’t audited, such a discrepancy is difficult to prove.

Precedent, he said, dictates undervotes are not considered a material discrepancy.

In fact, he said the only prior case in New York similar to this one was argued in 2010, involving a state senator who also lost by a small margin but larger than one vote.

The undervotes in that case were not deemed sufficient to order a recount, though he said the number of undervotes in that case wasn’t enough to sway the final result.