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Decision No. 12,564

Appeal of DAWN M. TAYLOR to set aside a permissive referendum approving the annexation of the Rushford Central School District into the Cuba Central School District.

Decision No. 12,564

(August 19, 1991)

Phillips, Lytle, Hitchcock, Blaine & Huber, attorneys for petitioner, Mark Perry, Esq., of counsel

Williams, Hulburt & Brown, attorneys for respondents Board of Education of the Cuba Central School District, the Cuba Central School District and Michael O'Brien, Peter Hulbert, Esq., of counsel

Moriarty & Swanz, attorneys for respondents Board of Education of the Rushford Central School District, the Rushford Central School District, and Marcia Schwarz, Donald J. Swanz, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks an order setting aside the results of an April 16, 1991 permissive referendum in which the voters of the Rushford Central School District ("Rushford") approved the dissolution of Rushford and annexation of Rushford's territory into the Cuba Central School District ("Cuba"). The appeal must be dismissed.

In August 1990, the Cuba and Rushford boards of education appointed seven committees to study whether the annexation of Rushford into Cuba would be in the best educational and financial interests of the districts. The results of their study were published and presented at a public meeting, and on March 4, 1991 I directed the dissolution of Rushford and annexation of its territory into Cuba.

Rushford and Cuba residents subsequently filed a petition pursuant to '1802 of the Education Law requesting permission to hold special voter meetings in both districts to consider the annexation order. I granted the request, and special meetings were held in Cuba and Rushford on April 16, 1991. The voters in Cuba approved the dissolution and annexation proposal by a vote of 576 to 182. The voters in Rushford narrowly approved the annexation and dissolution, 333 to 316, with six ballots declared void.

Petitioner points to several alleged irregularities in the conduct of the election as grounds to set it aside. First, petitioner claims that unauthorized persons canvassed and counted the ballots in violation of '2034 of the Education Law. Second, petitioner alleges that election officials unfolded and sorted the ballots into two stacks (one for "yes" ballots and another for "no" ballots) before initially comparing the number of ballots cast to the poll list, in violation of Education Law '2034(1). Petitioner also contends that, subsequent to the election, respondents gave unauthorized persons access to the ballots in violation of Education Law '2034(b). Petitioner further avers that the election clerk did not keep an accurate record of "all proceedings" as required by '2025 of the Education Law. Finally, petitioner contends that election officials engaged in electioneering and improperly declared four "no" ballots void.

There is a presumption that an election has been legally conducted unless the contrary has been established by competent evidence (Matter of Bernocco, et al., 20 Ed Dept Rep 343). The burden rests with petitioner to rebut the presumption by clearly showing an impropriety or illegality likely to have affected the election outcome, or so pervasive in nature as to vitiate the electoral process (Matter of Boyes v. Allen, 32 AD2d 990, aff'd. 26 NY2d 709 (1970); Matter of Selbst, 20 Ed Dept Rep 243; Matter of Gilbert, 20 Ed Dept Rep 174). To warrant setting aside the election, the improprieties alleged must be substantial, and not merely technical in nature (Matter of Karp, 20 Ed Dept Rep 200). I find no proof in the record before me of any illegal or improper action sufficient to justify setting aside the decision of the Rushford voters.

Although respondents admit that two unauthorized Rushford employees handled the ballots after the polls closed, the record is devoid of any evidence that those individuals counted, altered or removed the ballots, or took any action which affected the election results. In fact, all three election inspectors submitted affidavits stating that the unauthorized persons immediately obeyed authorities' directives to leave the area, and that the ballots were counted and tallied only by the election inspectors in compliance with Education Law '2034(2). Petitioner has introduced no evidence to the contrary.

With respect to petitioner's second claim, there is conflicting evidence as to whether election officials initially unfolded and counted the ballots without first comparing the number of ballots cast to the number of voters recorded on the poll list. Assuming the truth of the allegation, however, petitioner does not complain that the number of ballots cast did not reflect the number of names on the poll list. Nor is there any suggestion that sorting the ballots in this fashion somehow affected the election result (Matter of Levine, 24 Ed Dept Rep 172).

With respect to petitioner's third claim, respondents concede that, approximately ten days after the election, petitioner was allowed to examine the ballots at the election clerk's office. While clearly not in compliance with the procedures set forth in Education Law '2034(6), there is no evidence that this laxity in process affected the outcome of the election. To the contrary, by the time the ballots were made available to the public, the votes had already been counted and the final results announced.

Nor is there any merit to petitioner's claim that the election clerk failed to keep an appropriate written record of the election. Section 2025(4) of the Education Law requires the clerk to keep a "true and accurate written record of all the proceedings of the election." The record in this case reflects the date, poll hours and vote tally, including blank and void ballots. Petitioner, however, seems to suggest that the record was defective because it did not contain a verbatim recitation of a conversation that purportedly occurred between an election official and voter, which petitioner characterizes as "electioneering". Petitioner can point to no authority, however, to support the proposition that every statement made by election officials during the vote must be transcribed. Moreover, there is no conclusive evidence that such a conversation even took place.

Similarly, petitioner's electioneering claim must fail. Assuming that an election official did, in fact, tell a voter that "if the annexation is not approved, the children in Rushford will be forced to attend schools in the Franklinville, Belfast, Pioneer and Fillmore school districts, and eventually the Rushford school district will close . . . you have to think of the kids", these words afford no basis for invalidating the results of the election -- unless petitioner can show that they interfered with the voting process (Matter of Ferro, 25 Ed Dept Rep 175; Matter of D'Alessandro, 20 id. 123). Petitioner here has done nothing more than speculate that a single voter might have been influenced by the alleged statement.

Finally, I find no merit to petitioner's claim that election officials improperly voided four "no" ballots. As a threshold matter, if the disputed ballots were not voided and were instead counted as "no" votes, the results of the election would remain unchanged: the annexation would have nevertheless been approved by a vote of 333 in favor, 320 opposed. (SeeMatter of Ferro, 25 Ed Dept Rep 175). In any event, the record shows that election officials acted properly by voiding the disputed ballots. Education Law '2034(3) sets forth the circumstances under which a ballot is void:

3. The whole ballot is void if the voter

. . . b. defaces or tears the ballot, or

c. makes an erasure thereon, or . . .

One ballot was voided in accordance with subsection (b) because it was torn in half. Another was declared void because the voter defaced it by writing words extraneous to the vote on the ballot. The remaining two ballots were discounted because they contained erasure marks. In both erasure cases, the voter had erased his initial "yes" vote and checked the "no" box. Petitioner contends that the directions on the official ballot did not clearly indicate that erasing and remarking ballots would result in their being declared void. The official ballot plainly stated, however, that "If you tear or deface, or wrongly mark this ballot, return it and obtain another." I find that these instructions were not so deficient as to confuse a reasonable voter, and were consistent with the rule set forth in '2034(3)(c).

Petitioner has not established that the irregularities in this case are so pervasive that they vitiated the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174). Nor has petitioner shown that the irregularities affected the election results (Matter of Alpert and Helmer, 20 Ed Dept Rep 281).