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Decision No. 12,580

Appeal of ALAN GRESTY from action of the Board of Education of the Bloomfield Central School District, Charles Stappenbeck and Audrey Bemis, relating to the conduct of a school district election.

Decision No. 12,580

(September 5, 1991)

Sutton, DeLeeuw, Clark & Darcy, Esqs., attorneys for petitioner, Craig J. Doran, Esq., of counsel

Hancock & Estabrook, Esqs., attorneys for respondent board of education, Renee L. James, Esq., of counsel

SOBOL, Commissioner.--Petitioner, an unsuccessful candidate for election to membership on respondent board of education, seeks an order pursuant to Education Law "2034(6)(a) directing that the ballot box be opened and the ballots recounted to determine whether any ballots were improperly declared void. The appeal must be sustained.

The Bloomfield Central School District held its annual election on May 22, 1991. Respondents Stappenbeck and Bemis were listed on the official ballot as candidates for the one vacancy on the board. Their names were printed on the ballot across from a box which the voter is required to check to vote for a candidate. Below the names of the candidates was a line for a write-in candidate preceded by a voting square. The ballot contained the following instructions:

Make a cross "X" or a check "[ ]" in the voting square with either pen or pencil. Any other writing or erasure will void this ballot. If you mark this ballot wrongly or otherwise tear or deface it, return it to the clerk and receive a new ballot. There is one (1) vacancy to be filled on the Board of Education. You may vote for one candidate or writ-in. Any ballot with more than one "X" or "[ ]" will be declared void. One blank has been provided for write-in votes in which case you may write the name and then mark "X" or "[ ]" in the voting square before such name. (emphasis supplied).

The results of the ballot count were that respondent Stappenbeck received 428 votes, petitioner received 416 write-in votes and respondent Bemis received 346 votes. In addition, 42 ballots were declared blank and 85 were declared void. A number of ballots were declared void because voters wrote in the name of petitioner but failed to mark an X or check mark in the box adjacent to petitioner's name.

Respondent Stappenbeck was declared the winner and was installed as a member of the board on July 10, 1991. This appeal ensued.

Education Law "2034(6)(a) authorizes the Commissioner of Education to order a recount of the ballots in school district elections (Matter of Carville v. Allen, 24 Misc 2d 812, 205 NYS2d 253, mod. and aff'd. 13 AD2d 866, 214 NYS2d 985). However, a recount will not be ordered absent a substantial attack on the integrity of the tallies and the returns of the inspectors of election, such as a showing of fraud or improper conduct (Matter of Murtaugh, 19 Ed Dept Rep 179; Matter of Morehouse, 15 id. 27).

Petitioner maintains that the action of respondent board in declaring void ballots because voters wrote in the name of petitioner but failed to put an appropriate mark in the adjacent box was improper and that such ballots should have been counted. Respondent board maintains that it properly excluded such ballots since the ballots did not conform to the instructions printed on the ballot.

Education Law "2032(2) sets forth the manner in which ballots are to be cast on a paper ballot. That statute requires that single cross X mark or a single check mark must be placed in the square next to names that have been pre-printed on the ballot. 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. (emphasis supplied)

The statute specifically provides that writing the name is sufficient to indicate a vote. There is no requirement that a voter must place a mark in an adjacent box (Matter of Kenney, 1 Ed Dept Rep 431). The fact that the board has imposed such a requirement is immaterial. A board of education is not authorized to vary voting standards set forth in statute (Matter of Nield, 56 St Dept Rep 134).