Gershengorn agreed with the principle behind the procedure for replacing a candidate--that only his or her ballots, not all that ballots, should be recounted.

"This procedure utilizes the next preference on the ballots which were originally credited to Walsh," the judge added. "Effectively, then, the Walsh voters determine Walsh's successor."

A Unique System

McSweeney, who said his attorneys will file an appeal with the SJC this morning, thinks proportional representation results in some voters being ignored.

"The unfairness is there's 2200 people whose votes aren't being counted," said McSweeney, an employee-benefits specialist who has run for the council twice. Dennis Newman, McSweeney's attorney, said 2246 votes cast for him had been placed in the pile of "exhausted votes," rendering them ineligible for tomorrow's recount.

McSweeney disagreed with the Appeals Court ruling.

"They felt was that it wasn't unconstitutional," he said in an interview last night. "They didn't feel that the recount system alienated or intended to hurt anybody. Our argument is that everyone's vote should count."

"The main problem is you don't know who you're voting for," he added. "People in this particular case, if they voted for me, their vote doesn't count."

But Galluccio said that he sees the issue differently.

The expected winner said the spirit behind the recount rules ensures that the candidate closest to Walsh in views will get to replace him.

"The recount procedure assures that Bill Walsh's voters will elect a replacement," said Galluccio, a legislative aide to state Sen. Robert Wetmore (D-Barre).

"I'm not a big fan of [proportional representation], but what it does guarantee is that small pockets of voters with specific political philosophy--minorities--can elect a candidate," he said in an interview last night. "Only those votes which are cast for the elected councillor go to electing a replacement, and that assures that that replacement will be compatible."

Galluccio noted that proportional representation has been used in Cambridge elections since 1941.

"The fact of the matter is, you don't change the rules at half-time," said Galluccio, a Suffolk Law School night student.

Galluccio blamed McSweeney for using legal tactics to delay the replacement for Walsh's seat.

"Walsh's voters had no representation during a very crucial time," he said.

In the weeks following Walsh's removal, the city council voted on its home-rule petition to the state legislature, which sought to delay the abolition of rent control originally scheduled for January 1.

Neighbor said the results of the recount will be announced tonight, but McSweeney said he would try to obtain an SJC injunction delaying the recount until the court rules on the constitutionality question.

"We're neutral as far as our commitment to following the statute," said Neighbor, speaking for the four-member board