Decision No. 14,110
Appeal of GREGORY M. MUENCH from action of the Board of Education of the Central Square Central School District, Darren Otis, Jeremiah Forth and Eva Gigon regarding the conduct of an election.
Decision No. 14,110
(April 19, 1999)
Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent board of education, Craig M. Atlas, Esq., of counsel
MILLS, Commissioner--Petitioner, an unsuccessful candidate for the Board of Education of the Central Square Central School District ("respondent"), appeals the conduct of the May 1998 election. The appeal must be dismissed.
On May 19, 1998, respondent conducted the annual school budget vote and election for three seats on the board of education. Two candidates vied for each seat. Respondent Forth received the most votes for the first seat; respondent Gigon won the second seat; and respondent Otis defeated petitioner for the third seat by 1236 to 1135 votes (a difference of 101 votes). Petitioner’s primary contention is that 134 unregistered voters improperly registered and voted for the first time on the day of the election. However, only 78 affidavits from unregistered voters were submitted to the district. Furthermore, petitioner asserts that the qualifications of these voters could not be verified because they were improperly allowed to vote on the voting machines and not by paper ballot, in violation of Education Law "2019-a. Petitioner also contends that 14 individuals who had no address listed in the registration poll ledger voted in violation of Education Law "2014(2). In addition, petitioner alleges that there are other irregularities, respondent failed to inform the candidates prior to the election that they had the right to appoint poll watchers or protest voter qualifications, and respondent failed to take action against two candidates who did not file candidate expense forms. Petitioner requests that I vacate the results of the entire election or at least the results of the race for his seat.
Respondent asserts that petitioner has failed to prove that any alleged irregularities affected the outcome of the election. Respondent maintains that even if any alleged irregularities occurred, they were merely technical in nature and unintentional. Respondent also asserts that the petition fails to state a claim upon which relief may be granted; the rights of the unqualified voters were not timely challenged; and the Commissioner lacks jurisdiction over the portion of the petition relating to candidate expenditure reports.
I must first address a procedural issue. Petitioner submits additional information and exhibits in his reply, and makes additional arguments in his memorandum of law. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR "" 275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Krantz, 38 Ed Dept Rep 485; Appeal of Chechek, 37 id. 624; Appeal of Cole, et al., 37 id. 407). Nor may a memorandum of law be used to add belatedly new assertions that are not part of the pleadings (Appeal of McDougall, et al., 37 Ed Dept Rep 611). There is nothing in the affidavits that was unavailable at the time the petition was served. Nor does petitioner claim that he was precluded from obtaining this information in time to include it in the petition. Therefore, while I have reviewed petitioner’s submissions, I have not considered those portions of the reply containing new allegations or exhibits which are not responsive to new material or affirmative defenses set forth in the answer, or those portions of the memorandum of law raising new arguments.
Turning now to the merits, the record indicates that pursuant to its policy #2120, respondent had adopted a system of personal registration in accordance with Education Law "2014. Policy #2120 provides that a person is eligible to vote if he or she is a U.S. citizen; at least eighteen years old; a resident of the district for at least thirty days prior to the election; and listed on current voter registration lists maintained by the local Board of Elections or properly registered to vote within the school district. Under a personal registration system, individuals may register to vote either by personally appearing before the school district's board of registration in accordance with Education Law "2014(2), or by registering with the county board of elections. Therefore, any district resident who is registered to vote with the county board of elections is entitled to vote at all school district meetings and elections even if the individual's name is not otherwise listed on the school district register (Education Law "2012; Appeal of Hennessey, 37 Ed Dept Rep 480; Appeal of Greening, 35 id. 122; Appeal of Prosky, 34 id. 202).
In districts that use personal registration, where a voter presents himself to vote and his name cannot be found on the registration list, then election officials may not allow that person to vote at the election unless: 1) the person presents a court order requiring that he or she be permitted to vote; or 2) the person submits an affidavit attesting that he has duly registered and is qualified to vote (Education Law "2019-a(1)). Specifically, section 2019-a(1)(b) requires that the affidavit contain a statement that the voter:
has duly registered to vote, the address in such election district from which he registered, that he remains a duly qualified voter in such election district and that his registration poll record appears to be lost or misplaced, or that his name has been incorrectly omitted from the list of registered voters.
Section 2019-a(1)(b) further provides:
Such affidavit shall be printed on an envelope and shall contain an acknowledgement that the affiant understands that any false statement made therein is perjury punishable according to law. The voter shall then be permitted to vote a paper ballot. Such ballot shall thereupon be place in the envelope containing his affidavit, and the envelope sealed and returned to the board of education with other records of the meeting or election.
In this case, the affidavit provided to voters on May 19, said only:
I, ___, do hereby swear that on or about _____, 19__ I did in fact appear before the Board of Registration of District # __ of the Central Square Central School District and did register to vote in said District. I realize that falsely signing this statement would subject me to prosecution under the Education Election Laws.
The affidavit signed by the voters is obviously deficient. It fails to indicate even at a minimum that the individual is a duly qualified voter. Moreover, respondent admits that voters whose names did not appear on the registration poll ledger were allowed to vote on voting machines, rather than on paper ballots. Consequently, there is no way to determine whether those voters were indeed qualified, and, if they were not, how to discount their votes. Clearly these deficiencies--the insufficient affidavit and the lack of paper ballots--constitute irregularities in the conduct of the election.
However, to invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Santicola, 36 Ed Dept Rep 416), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601; Matter of Gilbert, 20 id. 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). 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 Goldman, 35 Ed Dept Rep 126; Appeal of Roberts, supra). Also, it is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Kushner, 36 Ed Dept Rep 261; Appeal of Young, 26 id. 272). Petitioner has failed to meet that burden.
Petitioner submits typed lists of names from each of the five election districts. Next to each name, one or more of five alleged deficiencies is marked: voting date wrong; no address; registered and voted the same day; registration expired; and no registration date. According to petitioner, these lists indicate that 134 unregistered voters registered and voted for the first time on May 19, 1998. This is greater than the 101-vote differential between petitioner and respondent Otis. However, these lists contain no indication of the source of the names and information, who compiled the list, how the "deficiencies" were determined or whether the county registration lists had been checked. Petitioner fails to provide substantial or substantiated evidence to support the lists or his allegations. Accordingly, while it is unclear whether these individuals were qualified voters, petitioner has not met his burden of proving that they were unqualified.
Furthermore, petitioner’s exhibits include affidavits from only 78 of these 134 voters. Petitioner asserts that the district’s failure to obtain affidavits from the other 56 voters is an irregularity in and of itself. However, but for five additional affidavits from voters who attest that they filled out affidavits on the day of the election, there is insufficient evidence to verify how many other individuals actually completed affidavits and registered for the first time on May 19. Hence, even if all 78 individuals improperly voted on May 19, and all 78 voted for respondent Otis, the outcome of the election was not affected where petitioner lost by 101 votes.
Petitioner asserts that he has questioned 364 votes of 2457 votes cast, or 15%, which would clearly affect the outcome of the election. However, not only is petitioner’s evidence insufficient, but his allegations of the number of improper votes vary in different submissions, making it virtually impossible to substantiate his allegations. First, in the petition, petitioner questions 134 voters and 14 other individuals who lacked proper address information in the poll registration ledger (for a total of 158). Then, in his reply, petitioner claims that he had previously submitted 248 votes in question, and now includes an additional 116 with his reply (for a total of 364 votes). Finally, in his memorandum of law, petitioner claims to have identified 134 unregistered voters in the petition, an additional 47 unregistered voters and an additional 19 voters who attempted to register on March 18 (for a total of 200) plus the new 116 in the reply (for a total of 316). Then he claims to have identified 164 irregularities on poll cards. As discussed above, I decline to consider the new information in the reply or memorandum of law. However, even if these various sets of numbers added up and the new "lists" of 116 voters were considered, the same evidentiary problems remain as with the first set of lists; petitioner has not substantiated his allegations and has not met his burden of proof.
In light of this disposition, I will not address the parties’ remaining contentions. However, while petitioner in this case has failed to meet his burden of proving that more than 101 unregistered voters improperly voted or that the irregularities were so pervasive that they vitiated the fairness of the election, it is nonetheless clear that certain irregularities occurred. Respondent asserts that the irregularities were unintentional and due in part to the fact that the district clerk was new to her position. These are not valid excuses for respondent’s conduct. Thus, while I am constrained to dismiss the petition, I admonish respondent to adhere to all the requirements in the Education Law in conducting its future elections.
Finally, with regard to petitioner’s allegation concerning financial statements, it is well settled that the failure of a candidate to file a complete statement of election expenditures is an insufficient basis for setting aside the results of a school board election (Appeal of Guttman, 32 Ed Dept Rep 228; Matter of Pendergast, 20 id. 127). Candidates who fail to file the required statements may be ordered to do so by a justice of a state supreme court (Education Law ""1530 and 1531; Appeal of Donnelly, 33 id. 362).
THE APPEAL IS DISMISSED.
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