The Court of Appeals yesterday paved the way for the counting of additional disputed ballots in a state Senate race that could favor Democrats. The court decided against considering Republicans’ appeal of a lower court’s decision. The result is that a lower court will begin counting the remaining 99 disputed ballots, most of which were contested by the GOP.

Republican George Amedore led Democrat Cecilia Tkaczyk by 37 votes on election night out of the 126,000 votes cast in the 46th Senate District, which winds from Montgomery to Ulster counties. Since the Nov. 6 election, the candidates have traded leads through the long count of absentee and paper ballots. A Tkaczyk win would give Democrats 33 seats in the 63-seat chamber.

The 4-1 Court of Appeals ruling in Matter of Amedore v. Peterson, 2013-72, included three judges appointed by Republican Governor George Pataki: Judges Susan Phillips Read (See Profile), Robert Smith (See Profile) and Eugene Pigott Jr. (See Profile). Chief Judge Jonathan Lippman (See Profile) joined the majority.

Judge Victoria Graffeo (See Profile), another Pataki appointee, dissented. She argued for the court to consider the appeal because the election inspectors completed their special ballots more than two weeks before Election Day, apparently in an administrative error. Election law states the votes must be made within two weeks of election. A lower court, however, found no violation of the law, which prompted the Republican appeal. “We have traditionally required strict compliance with these procedures, even when an inadvertent error by a board of elections has proven detrimental to the voter,” Graffeo wrote.