Decision No. 13,221

(July 20, 1994)

Harris, Beach & Wilcox, Esqs., attorneys for petitioner, Andrea M. Basile Terrillion, Esq., of counsel

Furlong, DeMarco and Delmonte, P.C., attorneys for respondent Antonia Delmonte, Richard D. Furlong, Esq., of counsel

SOBOL, Commissioner.--Petitioner Board of Education of the Wyoming Central School District seeks an order, pursuant to Education Law '2037, annulling the results of the special district meeting it conducted on December 1, 1993. The appeal must be dismissed.

Petitioner conducted a special district meeting to fill the unexpired term of a board member who resigned in the Fall of 1993. The term was to expire on June 30, 1994. Pursuant to Education Law '2035, a single voting machine was used to record votes cast during the special district meeting. According to the petition, the first lever of the voting machine was designated to respondent Antonia DelMonte, the second lever was designated to respondent Annette Zuber and the third lever was "locked out."

On the day of the special district meeting, the polls were opened at 9:00 a.m., after being set up by the chief election inspector two days earlier. It appears that at approximately 1:00 p.m., a piece of metal fell to the floor from the voting machine, was retrieved by an election inspector and given to the district clerk for safekeeping. However, these facts were not reported to the chief election inspector until after the polls closed at 9:00 p.m.

After the votes were counted, the chief election inspector reported 62 votes for Antonia Delmonte and 58 votes for Annette Zuber. A comparison of these totals with the voter log maintained by the election staff revealed that additional votes had been recorded under the third lever of the voting machine which had originally been "locked out."

Petitioner met on December 9, 1993 and resolved "not to appoint either candidate to the position" but to commence this appeal. The appeal was commenced on January 8, 1994, by personal service of the petition upon respondents Delmonte and Zuber. The petition seeks a stay ordering petitioner not to certify the election results and not to seat respondent Delmonte as a board member. It also asks me to set aside the election and order another special district meeting. I denied the stay on February 4, 1994, and on February 10, 1994, respondent Delmonte was sworn in as a member of the board of education.

Petitioner contends that because the votes recorded under the third lever of the voting machine exceeded respondent Delmonte's four vote margin of victory "there is a high probability that the mechanical failure of the voting machine affected the outcome of the election." As a result, petitioner claims that the election results must be set aside and another special district meeting ordered to fill the vacancy. Respondent Zuber takes the same position.

Respondent Delmonte contends that the petition fails to state a cause of action, that she is the legitimate winner of the election and that the unallocated votes recorded by the third lever must be deemed null and void pursuant to Education Law '2034(4).

The Commissioner of Education will set aside the results of the school district election on the basis of alleged irregularities only when it is probable from the evidence that the irregularities have affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, affd 26 NY2d 709; Appeal of The San Remo Civic Assn., 28 Ed Dept Rep 175; Appeal of Steenrod, 28 id. 131). An election may also be set aside where irregularities are "so pervasive in nature as to vitiate the electoral process" (Matter of Gilbert, 20 Ed Dept Rep 174). Moreover, where the results of an election do not accurately reflect the will of the voters because of voting machine malfunction, they may be set aside as well (Matter of D'Amico, 12 Ed Dept Rep 66). It must be emphasized that petitioner has the burden of proving that the alleged irregularities actually affected the results of the election (Matter of Riegler and Barton, 16 Ed Dept Rep 256; Matter of Coffee v. Commissioner, 9 id. 53, 62 Misc 2d 315; Matter of District No. 8, Chemung, 69 St Dept Rep 85).

The record before me contains only one voter affidavit, submitted by respondent Zuber, in which the affiant contends that she attempted to pull the lever designated to respondent Zuber, that it would not go down, and that she therefore used "the lever below." By way of contrast, the affidavit of the chief election inspector indicates that the metal clip he examined after the polls closed was intended to prevent the third lever of the machine from functioning. However, this affidavit does not say anything about the effect, if any, that the unlocking of the third lever had on the functioning of the first and second levers. Specifically, the chief election inspector fails to say that the unlocking of the third lever also resulted in locking the second lever, as claimed by the only voter who has submitted an affidavit.

While there may be a temptation to assume that some or even all of the votes cast on the third lever were intended for respondent Zuber, the evidence submitted by petitioner is insufficient to support such a conclusion. Even when combined with the evidence submitted by respondent Zuber, the proof is not adequate to overcome the presumption of regularity (Appeal of Rodriguez, 31 Ed Dept Rep 471; cf., Appeal of the Board of Education of the Fonda Fultonville Central School District, 33 Ed Dept Rep , Decision No. 13195, dated June 10, 1994).

I have considered the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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