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Decision No. 13,232

Appeal of JAMES F. DEMOS from action of the Board of Education of the Seaford Union Free School District, and Patricia Makhlouf, regarding the conduct of an election.

Decision No. 13,232

(July 29, 1994)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent board, Lawrence W. Reich, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the election of Patricia Makhlouf ("respondent Makhlouf") to the Board of Education of the Seaford Union Free School District ("respondent board"). The appeal must be dismissed.

On December 1, 1993, respondent board held a special district election to fill a vacancy on the board for the balance of a term that would have expired on June 30, 1996. The election was conducted from 11 a.m. to 10:00 p.m. at two polling places, the Seaford Harbor School and the Seaford Manor School. Respondent board held a regular meeting on election day. The meeting recessed at 8:50 p.m. until the polls closed, then reconvened at 10:25 p.m. at which time the election results were certified. Respondent Makhlouf received 247 votes and the other candidate, Michael Patterson, receiving 245 votes. Respondent Makhlouf was thereafter sworn in at the same board meeting.

Petitioner challenges the election result, asserting that there were several irregularities in the voting process and that respondent board failed to sufficiently review the results before swearing in respondent Maklhouf. Petitioner also alleges that respondent improperly extended the hours of the voting in violation of Education Law '2007(4). Petitioner seeks to set aside the board resolution declaring respondent Makhlouf the victor. Respondent contends that petitioner fails to demonstrate by competent evidence that any illegal voting occurred or that any alleged improprieties affected the outcome of the election. Respondent also contends that the hours of the voting were within the scope of '2007 and that the petition is untimely.

I will first address the issue of timeliness. Under 8NYCRR 275.16, an appeal "must be instituted within 30 days from the making of the decision or the performance of the act complained of." Respondent Makhlouf was sworn in as the new board member on the evening of the election, December 1, 1993. Respondent alleges that petitioner did not serve the petition until January 4, 1994, beyond the expiration of the 30 day limit. However, respondent submits no evidence to substantiate its allegation. The affidavits of service attached to the petition state that the petition was served on respondent board and on Patricia Makhlouf on December 30, 1993, within the 30 day time limit. In the absence of any evidence to the contrary, I find the petition timely.

With respect to the merits, petitioner claims that respondent board improperly extended the hours of the election in violation of Education Law '2007. Section 2007(4) provides:

The board of education in a union free school district shall, in each case when a special district meeting is required or permitted to elect members of such board of education, call such meeting for at least six consecutive hours between the hours of seven o'clock in the forenoon and nine o'clock in the afternoon, at least two of which hours shall be after six o'clock in the afternoon, and notice shall be given in the manner prescribed in section two thousand four of this chapter for meetings held over the hours.

The statute prescribes minimum hours for voting by use of the phrase "at least six consecutive hours." Nothing in the statute prohibits respondent from extending the hours to afford increased opportunity for voting, so long as proper notice requirements are complied with. Accordingly, there is no basis to nullify the election because of the hours that the polls remained open.

It is well established that 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 vitiated the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174), or demonstrated 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 rarely do 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). Moreover, 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). Finally, 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). Based upon the record before me, I find petitioner has failed to meet that burden.

The parties agree on these facts: at the Harbor School, the counter on the voting machine registered 315 votes, 313 people signed the poll list, and a total of 314 votes were cast; of those 314 votes, 148 were for respondent Makhlouf and 166 were for the other candidate (Michael Patterson). At the Manor School, the counter on the voting machine registered 175 votes, 173 people signed the poll list, and a total of 174 votes were cast. Of the 174 votes cast at the Manor School, 99 were for respondent Makhlouf, and 75 were for candidate Patterson, giving respondent Makhlouf 247 votes to 241 for Patterson. In addition, respondent states and petitioner does not dispute that there were two absentee votes and two votes by affidavit at the Harbor School, all in favor of candidate Patterson, raising his total to 245.

Petitioner claims several irregularities occurred in the voting. In particular, petitioner claims that at the Harbor School, 4 people signed registration cards but not the poll list, so the total number of people who presented themselves to vote was 317, 2 more than the counter on the voting machine registered and 3 more than the votes actually cast. Similarly, at the Manor School, 3 people signed registration cards but not the poll list so that the total number present to vote was 176, 1 more than the counter on the voting machine registered and 2 more than the total votes actually cast. Petitioner also presents a list of 26 voters (including himself) who signed the poll list but whose registration cards were not dated or witnessed by the election inspector. Petitioner claims that because the margin of victory was only two votes, these discrepancies should have been examined more closely before rushing to confirm respondent Makhlouf as the victor.

Given the small narrow margin of victory in this election, petitioner's claims have been given careful scrutiny. However, petitioner has simply failed to present evidence that the alleged irregularities in this case affected the outcome of the election. The fact that election inspectors failed to date or initial some registration cards is technical in nature. Similarly, the fact that some voters may have inadvertently failed to sign the poll list is a technicality. There is no evidence that these technical failures affected the outcome of the election and, therefore, they are insufficient reasons to overturn the election (Appeal of Roberts, 33 Ed Dept Rep 601; Appeal of Heizman, 33 id. 325; Appeal of Bleier, 32 id. 63; Appeal of Taylor, supra). In addition, the one vote discrepancy between the number of votes actually cast and the number registered on the voting machine counters in both the Harbor and Manor School polling places, without further information, is insufficient evidence on which to overturn the election. In sum, petitioner has failed to meet the burden of establishing that any irregularities occurred that affected the outcome of the election. Finally, petitioner presents an affidavit from Kimberly S. Lone, who states that she was not allowed to vote in the election even though she insisted she was an eligible and qualified voter and had registered to vote with the Nassau County Board of Elections. Residents who have registered to vote with the county board of elections and have voted in a general election at least once within the last four calendar years are entitled by Election Law '5-612(2) to vote in school district elections (Appeal of Como, et al., supra; Appeal of Shortell, et al., 27 Ed Dept Rep 190). When an individual requests to vote at a school district election, his or her registration is verified by looking at the school district's registration list. If the individual's name does not appear on the school district's register, then the county registration list must be checked. Allowing individuals to vote who are registered with the county board of elections but not with the school district is required by Election Law '5-612(2). In addition, if the name cannot be found on the county registration list, the voter may be allowed to vote in accordance with Education Law '2019-a(1). That section requires the voter to request, swear to and subscribe an affidavit stating, among other things, that the voter has duly registered and remains a duly qualified voter in the district (Appeal of Rodriguez, 31 Ed Dept Rep 471).

Respondent board admits that Ms. Lone was improperly denied the opportunity to vote because her name could not be found on the registration list and she was not offered the opportunity to vote by affidavit. However, while this is more than a mere technicality, the record fails to establish whether denying Ms. Lone the opportunity to vote had any affect on the outcome of the election. Her affidavit does not identify the candidate for whom she would have voted. Moreover, even if she had voted for Mr. Patterson, one vote would not have been enough to overcome the two vote margin. Thus, her vote would not have affected the outcome of the election. Accordingly, the election cannot be overturned on this basis.