Appeal of the BOARD OF EDUCATION OF THE GOSHEN CENTRAL SCHOOL DISTRICT from actions taken at a special meeting of the district.

Decision No. 15,721

(February 1, 2008)

Shaw, Perelson, May & Lambert, LLP, attorneys for petitioner, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner, the Board of Education of the Goshen Central School District, seeks an order pursuant to Education Law §2037 annulling the results of an election conducted by petitioner.  The appeal is sustained.

On December 4, 2007, petitioner conducted a special meeting to obtain voter approval for a capital project.  The vote was held from 6:00 a.m. until 9:00 p.m. and approximately 2,655 voters appeared and cast their ballots on two voting machines (“machine #1” and “machine #2”).  In addition, 86 absentee ballots were received.[1]  After the polls were closed and the voting machines were secured and opened, the special meeting chairperson (“chairperson”) and the district clerk discovered that the voting machines had registered a total of only 657 votes.  On machine #1, 338 votes were registered (314 “yes” and 24 “no”) and on machine #2, 319 votes were registered (309 “yes” and 10 “no”).  An election inspector advised the district clerk that “the [machine] counters turn over from 999 to 0 and start counting again” and that adding the digit “1” before each of the totals on the two voting machines (yielding totals of 1,338 and 1,319, respectively) would approximate the total number of voters who actually appeared.

As a result of the discrepancy, the chairperson was unable to certify the results of the election.  On December 6, 2007, petitioner voted to commence this appeal, in which it requests that I either (1) invalidate the results of the December 4, 2007 special meeting, or (2) declare the proposition defeated by extrapolating from the results of the absentee ballots.  Petitioner also requests that I “[l]eave it to the sole discretion of [the board] to determine whether or not to place the same or a different proposition before the voters ... at this time or at some future time.”

To invalidate the results of a school district election or vote, 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, affd 26 NY2d 709; Appeal of Santicola, 36 Ed Dept Rep 416, Decision No. 13,765), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162; Matter 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 (Capobianco v. Ambach and Bd. of Educ., Glen Cove City School Dist., 112 AD2d 640; Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356).  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, Decision No. 13,487; Appeal of Roberts, 33 id. 601, Decision No. 13,162).

The record before me indicates that, while the two voting machines’ public counters showed that 2,655 voters appeared for the December 4, 2007 special meeting, a total of only 657 votes actually registered.

Petitioner acknowledges in its verified petition that “[s]ince the votes registered on both voting machines, in both the ‘Yes’ and ‘No’ columns, were low, it was impossible to determine precisely how approximately 2,000 voters had voted.”  Petitioner notes that the votes cast in the 86 absentee ballots result in “an almost 3:1 ratio of negative to positive votes,” and suggests that this ratio be applied to the total votes actually cast in the two voting machines to conclude that the proposition would have been defeated.  However, of the 657 votes actually recorded on the machines, 623 were cast in favor of and only 34 in opposition to the proposition, indicating that the measure may have passed by an overwhelming margin.  As a result, petitioner’s analysis of the absentee ballots is speculative at best.

Based on the record before me, I am unable to conclude that the proposition was either approved or defeated at the December 4, 2007 special meeting.  While 2,655 voters appeared for the special meeting, only 657 votes were registered by the two voting machines.  Therefore, I find that the voting machine malfunction vitiated the electoral process and that a new vote would be necessary to determine the will of the voters (Appeal of Bd. of Educ. of the Whitehall Central School Dist., 44 Ed Dept Rep 246, Decision No. 15,161; Appeal of Bd. of Educ. of the Fonda-Fultonville Central School Dist., 33 id. 682, Decision No. 13,195).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the results of the special meeting conducted by petitioner on December 4, 2007 are hereby annulled; and

IT IS FURTHER ORDERED that petitioner is hereby authorized to call a special meeting of the district for the purpose of revoting on the proposition presented to the voters on December 4, 2007.

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