Decision No. 13,765

(May 5, 1997)

MILLS, Commissioner.--Petitioner, an unsuccessful write-in candidate in the May 8, 1996 election for a seat on the Board of Education of the Hunter-Tannersville Central School District ("respondent board"), challenges the reelection of David Kukle ("respondent Kukle"). Petitioner claims that voting irregularities concerning write-in votes affected the outcome of the election. In addition, petitioner alleges that electioneering was so pervasive that the entire election, including the budget and two other propositions, should be nullified and a new election should be held on all issues. Respondent board contends that petitioner has failed to prove that there were any irregularities in the voting and that even if there were, the outcome was not affected by the alleged irregularities. Respondent board also asserts that there was no electioneering. I denied petitioner's request for interim relief on June 5, 1996. The appeal must be dismissed. Analysis of election irregularities requires a two-part inquiry. Both prongs of this analysis must be satisfied for the Commissioner to disturb the outcome of an election (Appeal of Kushner, 36 Ed Dept Rep 261; Appeal of Goldman, 35 id. 126). First, petitioner must prove improper conduct on the part of the respondent, such as a violation of Education Law or Commissioner's regulations (Appeal of DiMicelli, 28 Ed Dept Rep 327, Appeal of Amoia, 28 id. 150). Second, petitioner must establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, 301 NYS2d 664, aff'd 26 NY2d 709, 308 NYS2d 873; Appeal of Roberts, 33 Ed Dept Rep 601), were so pervasive that they vitiated the electoral process (Appeal of Roberts, supra; 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 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, 492 NYS2d 157). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483). Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR '275.10; Appeal of Pickreign, 28 Ed Dept Rep 163).

As a preliminary matter, I will not consider the material belatedly added by petitioner in his reply pertaining to respondent board's alleged failure to report how many voters actually registered to vote. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR '275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions which should have been included in the petition (Appeal of Kushner, supra). This claim is completely speculative and is not responsive to respondent's answer.

Petitioner challenges the election of respondent Kukle based on several alleged irregularities. First, petitioner contends that respondent board failed to provide instruction about how to cast write-in votes and failed to provide any labeling or notice within the voting booth as to where and how to cast a write-in vote. According to petitioner, such failures unfairly swayed the outcome of the election in favor of respondent Kukle because the potential inability to maintain the privacy of their vote by having to ask for information and overall frustration induced voters to simply pull the lever for respondent Kukle instead of writing in petitioner's name.

Education Law '2032(2)(e) provides:

Petitioner contends that the actual space for write-in votes was unlabeled and located not under respondent Kukle's name but about 14-16 inches out of alignment. He claims that the fact that the space was unlabeled gave the impression that no space was provided for write-in votes.

Respondent board asserts that it did provide voters with the opportunity to cast write-in ballots, as evidenced by the fact that at least 5 voters cast write-in votes (1 on the first voting machine and 4 on the second) and no other requests, claims or complaints were received. Further, it asserts that the custodian of the voting machines instructed the election inspectors on the procedures for casting write-in ballots and how to explain those procedures to voters.

Petitioner has failed to meet his burden of proof on this issue. Petitioner makes no allegation that the election inspectors failed to instruct or improperly instructed any voter inquiring as to the proper method to cast a write-in vote. Even if respondent board could have been more careful in its labeling of the space on the district's ballot for write-in votes, there is simply no evidence to conclude that any alleged irregularity affected the outcome of the election. The petition consists of unsubstantiated allegations that unidentified and unspecified voters may have been dissuaded from writing-in their votes. Petitioner submits no affidavits from any voters that they were denied the opportunity to write-in a candidate's name or that their vote would have been different. SeeAppeal of Board of Trustees of the Syosset Public Library, 32 Ed Dept Rep 460; Appeal of Loriz, 35 id. 231. In fact, the evidence shows that some voters did indeed cast write-in votes: petitioner received 2 write-in votes and 3 write-in votes were received by a third party. With no evidence that any voter was actually prevented from casting write-in votes or that a lack of clear and specific labeling preventing the writing-in of votes, petitioner has failed to show that the outcome of the election was affected. Petitioner also contends that respondent board failed to count the write-in vote. The results of the May 8, 1996 vote on the board seat and three other propositions were:

Petitioner claims that he was denied the benefit of potentially 291 votes, thus reducing respondent Kukle's margin of victory to only 22 votes (333 to 291). Respondent board asserts that the write-in votes were counted and read aloud when the votes were counted immediately after the polls closed. It is clear that five write-in votes were made and counted by respondent board. Petitioner has submitted no evidence to support his claim or his theory of how he could have been the beneficiary of the 291 votes cast against the budget. Accordingly, he has also failed to meet his burden of proof on this issue.

Education Law '2031-a prohibits electioneering within 100 feet from the building where an election is held. Petitioner alleges that respondent board permitted electioneering within 100 feet of the voting area by permitting the school yearbook committee to hold a Brooks Barbecue fundraiser during some hours of the election. Specifically, petitioner claims that the wafting of tempting aromas from the barbecue induced voters to believe that supporting the budget propositions and reelecting respondent Kukle would be as pleasant as savoring the delights of the barbecued chicken. Petitioner contends that this electioneering could have swayed the 22 votes needed for him to prevail in the election. He argues that sending notices home with students about the barbecue and posting notices throughout the district was improper electioneering. He also contends that the facts that the grill was located only 25 feet from the building, the cafeteria was inside the building, and posters for the barbecue were placed inside the building, in and of themselves, constitute electioneering. Respondent board asserts that no electioneering, proper or improper, took place. The school custodian properly posted 100 foot markers outside the school building where the voting was to take place and the district clerk hung posters in and around the building stating that no electioneering could take place within 100 feet of the polling place. The clerk also states in an affidavit that while posters for the barbecue were posted in front of the building and immediately inside the building, there were no signs indicating how voters should cast their votes. Respondent board asserts that the outdoor barbecue was located 135 feet from the voting machines and the cafeteria where the meals were eaten was located 130 feet from the machines. The district clerk's affidavit states that she was present during the voting and observed no electioneering.

Other than the alleged smell of the chicken, petitioner offers no proof that respondent board in any way permitted electioneering to be conducted during the barbecue. While there were posters for the barbecue inside the building, petitioner's own evidence shows they contained no information about respondent Kukle or any other candidate or issue. The holding of the barbecue at the same time as the election, even if the grill is within 100 feet of the voting booth, does not constitute electioneering in and of itself. SeeAppeal of Sowinski, 34 Ed Dept Rep 184. Moreover, petitioner admits that the posters were placed in public places throughout the district. Thus, the barbecue information was distributed to all district residents and not targeted only to families of students attending district school who might be inclined to support the budget and the incumbent (Appeal of Sowinski, supra). In all other respects, it appears that respondent board complied with Education Law '2031-a by posting the appropriate markers 100 feet outside the building.

THE APPEAL IS DISMISSED.

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