Decision No. 16,871
Appeal of CHARLIE REED from action of the Board of Education of the Wyandanch Union Free School District and Moneik Hatcher regarding a school district election.
Decision No. 16,871
(February 8, 2016)
Guercio & Guercio, LLP, attorneys for respondent Board of Education of the Wyandanch Union Free School District, Lisa L. Hutchinson, Esq., of counsel
ELIA, Commissioner.--Petitioner, an incumbent and unsuccessful candidate for election to the Board of Education of the Wyandanch Union Free School District (“respondent board” or “board”), challenges the election of Moneik Hatcher (“respondent Hatcher”) to the board. The appeal must be sustained in part.
On May 19, 2015, respondent board held its annual election. Petitioner and respondent Hatcher were listed on the official ballot as candidates for one of three seats on the ballot. Their names were printed on the ballot in two boxes in the first column beneath a top box which stated “School Trustee Term expires June 30, 2018 Incumbent Charlie Reed (Vote for One)” (emphasis in original). Under the boxes listing the candidates’ names, in column one, were three additional blank boxes, followed by a forth box which stated in small print at the top left hand corner “Write-in.” In each of the candidate’s boxes was an oval and the ballot contained the following pertinent instructions:
To vote for a candidate whose name is printed on this ballot fill in the oval  to the right of the candidate’s name.... To vote for a person whose name is not printed on this ballot write or stamp his or her name on a blank “Write-in” area under the names of the candidates for that office.... Any other mark or writing, or any erasure made on this ballot outside the voting squares or blank spaces provided for voting will void this entire ballot.... Prior to submitting your ballot, if you make a mistake in completing the ballot or wish to change your ballot choices, you may obtain and complete a new ballot. You have a right to a replacement ballot upon return of the original ballot.
On the night of the election, the results for the seat at issue were declared as respondent Hatcher having received 234 votes to petitioner’s 233 votes.
As part of this appeal, respondent board provided an affidavit of the district clerk in which she states that the May 19, 2015 election was conducted using electronic voting machines and that the ballots were cast using forms created through the county board of elections at the direction of respondent board. The district clerk avers that “[d]uring the course of the election, there was no review of the electronically scanned ballots to determine whether write-in votes were cast on the ballots.” However, the district clerk also explains that, “[t]he following day, on May 20, 2015, in response to inquiry and discussion with [b]oard counsel relative to review of write-in ballots” the district clerk “reviewed the electronically scanned paper ballots to determine whether write-in votes had been cast” and found that “in all cases, the space required for write-in ballot names were blank ....” The district clerk further avers that, on one particular ballot, a voter had written petitioner’s name in the blank box directly under the box in which petitioner’s name was printed. The district clerk also stated that she was advised by board counsel that this ballot should not be counted “because among other things, only the Commissioner of Education could order a recount of ballots.” Thereafter, as stated in the district clerk’s affidavit, the votes for two of the three seats were certified by the board at its June 3, 2015 meeting; however, the results for the seat at issue herein were not certified by the board.
This appeal ensued. Petitioner’s request for interim relief was denied on June 29, 2015. By letter dated August 12, 2015, my Office of Counsel requested a certified copy of the ballot as referenced above in the district clerk’s affidavit. Such ballot was provided by respondent board on August 20, 2015, and I have examined it as part of the record in this case.
Petitioner first asserts that respondent Hatcher has failed to meet the one-year residency requirement of Education Law §2102 and seeks a determination that she is not qualified to serve as a member of the board. Specifically, petitioner contends that, while he has been a continuous resident of the district since June 1964, respondent Hatcher resided at an address outside the district’s boundaries “for a time, during the period May 1, 2014 through May 1, 2015 ...” and began residing in the district less than one year prior to the district’s annual meeting and election on May 19, 2015. Petitioner also asserts that the write-in ballot should have been counted, thus resulting in a tie between petitioner and respondent Hatcher. Petitioner seeks a determination declaring him the winner of the seat at issue or, in the alternative, an order directing respondent board to conduct a recount, or further, in the alternative, an order setting aside the election and directing respondent board to hold a special election for the purpose of filling the seat at issue.
Respondent board denies knowledge and information regarding petitioner’s claims that respondent Hatcher does not meet the residency requirement of Education Law §2102. Respondent Hatcher states that she has met the residency requirement of Education Law §2102 by continuously residing within the district from “March 11, 2014 through the date of [her] [a]nswer” which was July 4, 2015.
Respondent board also states that, to the extent the Commissioner determines that a discrepancy exists with regard to the failure to count the write-in ballot and determines that a recount or a new vote is required, the board does not object to the relief sought by petitioner seeking such recount or revote. In its answer, respondent board also notes its intention to swear respondent Hatcher in at the July 14, 2015 board meeting. Respondent Hatcher contends that the write-in ballot should not be counted based upon the district clerk’s statement that such ballot was not qualified to be counted and that the results of the election should remain the same.
I will first address the residency issue. Education Law §2102 states that “each member of a board of education ... shall have been a resident of the school district ... for at least one year prior to the election.” Further, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). Here, petitioner failed to offer any evidence to substantiate his claim that respondent Hatcher resided at an address outside the district for a portion of the year of residency required prior to the election. Thus, petitioner failed to prove that respondent Hatcher did not meet the residency requirement of Education Law §2102 or that she was not qualified to serve as a member of the board. Accordingly, this claim must be dismissed.
To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also a probability that any irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905), were so pervasive that they vitiated the electoral process (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Georges, 45 id. 453, Decision No. 15,380), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, affd sub nom Capobianco v. Ambach, et al., 112 AD2d 640). Implicit in these decisions is the 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 Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748; Appeal of Georges, 45 id. 453, Decision No. 15,380).
Petitioner contends that a write-in ballot cast for him was not counted on the night of the election and that “the electronic voting machines used by the [d]istrict for the first time in 2015 did not pick up the write-in ballot because the voter filled in [p]etitioner’s name on the ballot at a place other than the box designated for that purpose but in plain view.” The affidavit of the district clerk explains that the May 2015 election was the first time that she, as district clerk, “used electronic voting machines and was not familiar with the procedure for recognition of write-in ballots by said machines.”
Education Law §2032 sets forth the manner in which ballots are to be cast. In connection with a write-in vote, Education Law §2032(2)(e) provides as follows:
One blank space shall be provided under the name of the last candidate for each separate specific office so that voters may vote for candidates who have not been nominated for the offices to be filled at such election and the writing in, with a pencil having black lead, by a voter, of a name in the blank space so provided, shall indicate a vote.
Further, Education Law §2034 governs the canvass of votes and declaration of the result. Particularly, Education Law §2034(2) directs that “[t]he ballots shall be counted or canvassed by the inspectors of election and the votes cast for each candidate shall be tallied and counted ....” Education Law §2034(4) provides that “if for any reason it is impossible to determine the voter’s choice of candidate for an office his vote shall not be counted ... but shall be returned as a blank vote thereon.” Education Law §2034(7) provides that, the chairman shall declare the result of each ballot and the persons having a plurality of the votes cast shall be elected.
I have examined the certified copy of the disputed ballot provided by respondent board and have identified two issues. First, although the names of all the candidates appeared on the pre-printed ballot, the voter wrote the names of his selections, including petitioner, on the ballot, instead of filling in the oval to the right of each candidate’s name to indicate his or her vote as directed. Second, instead of writing petitioner’s name on the ballot in the designated box for “Write-in” at the bottom of column one, the voter wrote petitioner’s name in the box directly under petitioner’s pre-printed name. The voter also wrote the names of candidates for the other two seats in the third row of their respective columns.
With respect to the first issue, even though petitioner’s name was pre-printed on the ballot, a voter is not precluded from writing in the candidate’s name as long as it appears under the area (here, under the top box in column one) set aside for the school board position for which the candidate was running (Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162). In Appeal of Roberts, a case in which two write-in votes were contested, it was determined that the one write-in vote for the incumbent, whose name appeared on a pre-printed ballot, was properly counted because it was registered in window one, the designated write-in window for the board member’s seat.
With respect to the second issue, I note that in Appeal of Roberts (33 Ed Dept Rep 601, Decision No. 13,162), the Commissioner found that the second contested write-in vote was properly excluded because it was not correctly cast in the place designated on the machine for the office of board member. In so ruling, the Commissioner cited to Matter of Haynie v. Mahoney (48 NY2d 718) in which the Court of Appeals, applying the Election Law, found that a write-in ballot for a common council seat written in the column for county executive was void (Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162). It is well-settled that the Election Law does not govern the conduct of school district elections (Election Law §1-102; Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Georges, 45 id. 453, Decision No. 15,380; Appeal of Brown, et al., 43 id. 231, Decision No. 14,980). However, the Commissioner has considered provisions or interpretations of the Election Law as guidance for interpreting the Education Law (see e.g., Appeal of Baker, 30 Ed Dept Rep 228, Decision No. 12,443; Appeal of Como, et al., 28 id. 483, Decision No. 12,177; Matter of Savage, 1 id. 24, Decision No. 6,440). In this regard, I note that while the Court of Appeals has ruled that “out-of-column” write-in ballots are void (Matter of Brownson v. Andrews, et al., 90 NY2d 949, 950; see Matter of Haynie v. Mahoney, 48 NY2d 718), the instant appeal does not involve a write-in ballot cast in the wrong column. In cases such as the one before me, where candidates’ names are written in the correct column but the wrong row, courts have found such ballots to be valid, noting that “[w]here the intent of the voters is apparent ... it should not be frustrated by technical rules” (see Hosley v. Valder, 160 AD2d 1094, 1096; Carpinello v. Tutunjian, 154 AD2d 872; cf. Matter of Haynie v. Mahoney, 48 NY2d 718). Finally, as noted above, this principle is reflected in Education Law §2034(4), which specifically states that in a union free school district election, “if for any reason it is impossible to determine the voter’s choice of candidate for an office his vote shall not be counted for such office but shall be returned as a blank vote thereon” (emphasis supplied).
Accordingly, on the record before me and consistent with the above discussion, I find that it is not impossible to determine the choice of the voter in question; indeed, such voter’s intent is apparent and should not be frustrated. Here, petitioner has established both that irregularities occurred – the district clerk neither reviewed nor counted the single write-in vote because, according to her affidavit, she was advised by board counsel that the ballot should not be counted “because among other things, only the Commissioner of Education could order a recount of ballots” – and that this irregularity actually affected the outcome of the election - the single write-in vote would have, if counted, resulted in a tie vote. I also note that, in its verified answer, respondent board states that “to the extent the Commissioner determines that a discrepancy exists with regard to the failure to count the write-in ballot and determines that a recount or a new vote is required, the Board of Education does not object to a recount or a new vote.” Therefore, under the circumstances presented here, I find that petitioner has carried his burden of proof.
Finally, it is understood that respondent Hatcher was a de facto member of the board of education until the date of this decision and that no actions of the board in which she participated as a de facto member are invalidated as a result of this decision (see Appeal of Roy, 31 Ed Dept Rep 497, Decision No. 12,713).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the results of the May 19, 2015 school board election as between petitioner and respondent Hatcher and the actions of respondent board resulting in declaring the results and/or the swearing in of respondent Hatcher as a member of the board of education of the Wyandanch Union Free School District be, and hereby are, annulled; and
IT IS FURTHER ORDERED that respondent board proceed to call a meeting of the district for the purpose of electing a member of such board to fill such vacancy, as soon as practicable but no later than the district’s next annual meeting and budget vote in May 2016.
END OF FILE
 The same format was used on the ballot for the other two seats, located in the two additional columns to the right.
 For the other two seats to be filled, this individual had likewise written in one of the candidates’ names in the blank box beneath the boxes containing the printed names of the candidates for each of those two seats, in each of the two additional columns to the right.