Decision No. 13,162

(April 29, 1994)

of counsel

SOBOL, Commissioner.--Petitioner challenges the election of Edward Park ("respondent Park") to the Board of Education of the Roscoe Central School District ("respondent board"). The appeal must be dismissed.

Petitioner, Kevin Roberts, was a write-in candidate for a seat on respondent board. The election was held on May 5, 1993, and resulted in the election of the incumbent, respondent Park, by a margin of two votes over petitioner. This appeal ensued.

Respondent board's annual election included propositions pertaining to the budget, the library, and the election of one school board member. The votes were tallied by machine and a total of 462 votes were cast. Of the total votes, 419 were cast for the board member position, with respondent Park receiving 197, petitioner receiving 195, and 27 distributed among 5 other write-in candidates. Because respondent Park was the only candidate who submitted nominating petitions, he was the only candidate whose name appeared on the printed ballot which was affixed to the voting machine on line one. Write-in votes were recorded for petitioner and other candidates in window one, above respondent Park's name. All other windows were inactive and covered by a strip of paper.

Petitioner challenges the election of respondent Park based on several alleged irregularities. He contends interalia, that the poll list was not maintained, that one write-in vote for respondent Park in window one should not have been counted; one write-in vote for petitioner in window three should have counted; an improper vote may have been cast; the district improperly continued voter registration until April 30, the fourth day before the election; and the polling place was inaccessible to persons with disabilities.

Respondent contends that petitioner failed to prove that the outcome of the election was affected by the alleged irregularities and that petitioner's allegations lacked the specificity required by 8 NYCRR 275.10.

As a preliminary matter, petitioner asserts new allegations in his reply which were not included in the petition. Consistent with ''275.3 and 275.14 of the Commissioner's Regulations, a reply may only be submitted in response to affirmative defenses and new material raised in an answer. The reply does not provide an opportunity to raise new grounds for relief (Appeal of Eastman Kodak Company, 32 Ed Dept Rep 575; Appeal of Alexandreena D., 30 id. 203; Appeal of Santicola, 29 id. 213), or to buttress allegations in the petition or add assertions which should have been included therein (Appeal of Eastman Kodak Company, supra; Appeal of Brousseau, 31 Ed Dept Rep 155; Appeal of Barbara P., et al., 30 id. 198; Appeal of Pronin, 27 id. 203). Therefore, new allegations in the reply which should have been included in the petition will not be considered here.

Regarding the merits, there is a presumption of regularity in the conduct of an election. The Commissioner of Education will not set aside the results of a school district election in the absence of evidence that the alleged irregularities affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd. 26 NY2d 709; Appeal of Brower, 29 Ed Dept Rep 145), are so pervasive that they vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the election provisions of the Education Law (Matter of Levine, 24 Ed Dept Rep 172, aff'd sub nom; Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Como, et al., 28 Ed Dept Rep 483). To warrant setting aside an election, petitioner must establish that the improprieties alleged are substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). Petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Upon the record before me, I find petitioner has failed to meet that burden.

Petitioner's main contentions involve the maintenance of the poll list and the two contested write-in votes. Respondent board concedes that the poll list was incomplete inasmuch as the names and addresses of some individuals who voted were not recorded. However, the record contains no evidence that the outcome of the election was affected by respondent board's failure to maintain a complete poll list. Consequently, the board's technical failure to complete its poll list is not a sufficient reason to invalidate the results of the election (Matter of Richter, 17 Ed Dept Rep 70).

With regard to the disputed write-in votes, the write-in vote for respondent Park was properly counted because it was registered in window one, the designated write-in window for the board member's seat. Even though respondent Park's name appeared on a pre-printed ballot affixed above the voting levers, that did not preclude a voter from writing in the candidate's name as long as it appeared under window one, set aside for the school board position. On the other hand, the write-in vote for petitioner recorded under window three was properly excluded from the final vote tally because it was not correctly cast in the place designated on the machine for the office of board member. Moreover, voters were instructed by election officials and petitioner's campaign literature to write in their votes in window one. Therefore, respondent board's action not to count the write-in vote in window three was proper because a write-in vote cast in the wrong place on a voting machine must be treated as a blank vote and may not be counted (Appeal of Baker, 30 Ed Dept Rep 228; see, also, Haynie v Mahoney, et al., 48 NY2d 718, 422 NYS2d 370). Even if the vote had been counted, it would not have changed the outcome of the election.

Petitioner also alleges that one unnamed individual who does not reside in the district was allowed to register and vote. Where there is a system of voter registration in place, an unqualified voter must be challenged pursuant to Education Law '2015(3) and (4). There is no evidence that a proper challenge was made in this case. Where no timely challenge is made, the voter's qualifications may not later be challenged on appeal (Matter of Albanese, 8 Ed Dept Rep 113).

Petitioner alleges that voter registration continued within five days before the election, contrary to Education Law '2014(2). Respondent board denies the allegation and affirms that no voter registered after the deadline. The record indicates that the district's publications informed voters that the last day for personal registration for the May 5 election was April 28, 1993. In the absence of any evidence to support petitioner's allegation that voter registration extended beyond the established deadline, the claim must be dismissed.

Petitioner also claims that the facility used for the election was inaccessible to persons with disabilities but presents no proof that any voter was denied access to the polling place. Respondent denies the allegation but acknowledges that one voter in a wheelchair requested and received assistance from election officials. Voting took place on the ground floor of a school building. In any event, such a claim would assert a violation of '504 of the Rehabilitation Act of 1973 (29 U.S.C. '794) and the Americans with Disabilities Act of 1990 ("ADA", 42 U.S.C. ''12101-12133), enforcement of which is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education (29 U.S.C. '794a, 34 C.F.R. '104.61; 28 C.F.R. ''35.170-35.190; Appeal of Eagelfeld, 33 Ed Dept Rep 256).

I have considered petitioner's other claims and find them without merit.

THE APPEAL IS DISMISSED.

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