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Decision No. 14,375

Appeal of MATTHEW KUSCHNER and JOHN PINTO from action of the Board of Education of the North Merrick Union Free School District and Linda Fuller regarding the conduct of an election.

Decision No. 14,375

(May 26, 2000)

Wasserman and Steen, attorneys for petitioners, Lewis M. Wasserman, Esq., of counsel

Minerva & D’Agostino, P.C., attorneys for respondent Board of Education of the North Merrick Union Free School District, Albert A. D’Agostino, Esq., of counsel

Henry J. Cernitz, Esq., attorney for respondent Fuller

MILLS, Commissioner.--Petitioners challenge the election of Linda Fuller ("respondent Fuller") to the Board of Education of the North Merrick Union Free School District ("respondent board"). The appeal must be sustained.

On May 18, 1999, respondent board held an election to fill two seats on the board of education. There were two candidates vying for one board seat, respondent Fuller and Matthew Kuschner ("petitioner Kuschner"). Another candidate ran unopposed for the second board seat which is not being challenged in this appeal.

The polls opened at 2:00 p.m. At approximately 6:00 p.m., a qualified voter reported that it was possible to vote for both respondent Fuller and petitioner Kuschner for the contested board seat. There is no dispute that the voting machines should have been programmed to prevent an individual from voting for each of the opposing candidates for the same board seat. The parties further agree that before the voting machines were repaired at approximately 6:30 p.m., 67 individuals voted for both petitioner Kuschner and respondent Fuller. Petitioner Kuschner lost the election by 23 votes and commenced this appeal. Petitioners’ request to stay the election results pertaining to the contested seat was granted on June 30, 1999.

Petitioners maintain that the irregularities in the conduct of the election are so pervasive that they vitiate the electoral process. They argue that the results of the election do not accurately reflect the will of the voters because the voting machines were initially incorrectly programmed, permitting 67 individuals to vote for both petitioner Kuschner and respondent Fuller. In addition, petitioners contend that it is impossible to ascertain the will of the voters because the voting machine ballot failed to instruct voters that they could only vote for one candidate, petitioner Kuschner or respondent Fuller, for the seat at issue. Furthermore, petitioners submit that the ballot actually instructed voters to vote for both petitioner Kuschner and respondent Fuller by stating "SCHOOL BOARD MEMBERS, Two (2) Board Members" at the top of the column in which both candidates names were listed. Petitioners maintain that there is no way to ascertain the outcome of the election if the voting machines had been functioning properly and the voters were given appropriate instructions. Petitioners seek an order pursuant to Education Law "2037 annulling the election results for the contested seat and directing respondent board to conduct a new election for that seat.

Respondents submit that any irregularities in the conduct of the election are technical in nature and are insufficient to warrant an order setting aside the election results. Respondents do not dispute that the voting machines were initially incorrectly programmed or that 67 individuals voted for both petitioner Kuschner and respondent Fuller. In addition, respondents concede that the voting machine ballot does not conform to the requirements contained within Education Law "2032(b), but argue that the defects are not sufficient to invalidate the election pursuant to Education Law "2032(6). Respondents suggest that district voters should have known that they could vote for either petitioner Kuschner or respondent Fuller, based on the information contained within the notice of the annual meeting as well as the candidates’ active public campaigns, which allegedly demonstrated that they were vying for the same seat. Respondents further argue that the 67 votes cast for both candidates should be deemed null and void pursuant to Education Law "2034(4).

An election will not be overturned due to election irregularities unless the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen et. al., 32 AD2d 990, aff’d, 26 NY2d 709; Davis v. Commissioner of Education, 189 AD2d 1046; Appeal of DeBerardinis, 39 Ed Dept Rep 145, Decision No. 14,196), were so pervasive that they vitiated the electoral process (Appeal of Sharp, 35 Ed Dept Rep 471, Decision No. 13,603; Appeal of Roberts, 33 id. 601, Decision No. 13,162; Appeal of Gilbert, 20 id. 174, Decision No. 10,366), 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, Decision No. 11,356, aff’d sum nom, Capobianco v. Ambach, 112 AD2d 640). Furthermore, it has long been held that where the results of an election do not accurately reflect the will of the voters due to voting machine malfunctions, those results must be set aside where there is no way to ascertain the outcome of the election had the machines been functioning properly (Appeal of Sharp, supra; Appeal of Bd. of Educ., Fonda-Fultonville Central School District, 33 Ed Dept Rep 682, Decision No. 13,195; Appeal of St. Onge, 30 id. 176, Decision No. 12,424). In such cases, the irregularities are so pervasive that they vitiate the electoral process.

As set forth above, in the instant appeal, there is no dispute that the voting machine ballot did not comply with the requirements of Education Law "2032(2)(b) and that the voting machines were initially improperly programmed permitting 67 individuals to vote for both candidates. Education Law "2032(2)(b) requires a ballot for a separate specific board seat to include, among other items, "a direction that only one vote may be cast in each specific group." Pursuant to Education Law "2032(6), a school board election shall not be invalidated because of the use of improper ballots, provided the intent of the voter may be ascertained from the use of the irregular or defective ballots and such use was not fraudulent and did not substantially affect the result of the election. Based on the record before me, I find that the intent of the 67 individuals who voted for both petitioner Kuschner and respondent Fuller cannot be ascertained, and, therefore, Education Law "2032(6) does not preclude the invalidation of the election. It is apparent from the election results that the instructions provided to the voters were deficient and, at a minimum, confused those 67 individuals who voted for both petitioner Kuschner and respondent Fuller. It is impossible to determine which of the two candidates the 67 individuals preferred. Since respondent Fuller was declared the winner by a margin of only 23 votes, the failure to use a proper voting machine ballot in conjunction with the fact that the voting machines were initially improperly programmed substantially affected the outcome of the election.

I further find that the irregularities are so pervasive that they vitiate the electoral process. Therefore, to ascertain the true wishes of the electorate, it is necessary to set aside the election and direct respondent board to conduct a new election.

In light of this determination, I will not address petitioners’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the determination of respondent board declaring respondent Fuller the winner of the contested seat on the board of education be, and hereby is, annulled; and

IT IS FURTHER ORDERED that respondent board proceed forthwith to call a special meeting of the district for the purpose of electing an individual to fill the contested seat.

END OF FILE