Decision No. 13,020

(October 15, 1993)

Burke & Burke, Esqs., attorneys for petitioner, Richard J. Burke, Esq., of counsel

Cooper, Sapir & Cohen, P.C., attorneys for respondent Board of Education, Robert Sapir, Esq., of counsel

Carman, Callahan, and Ingham, Esqs., attorneys for respondent Larry Fensore, Michael F. Ingham, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent board of education's decision to disqualify six ballots ("affidavit ballots") cast at the annual school district election on June 16, 1993 by individuals whose names could not be found in the voter registration records. Petitioner requests that I direct respondent board to consider and canvass the affidavit ballots of four such voters whose names were later found on the registration lists. Petitioner also requests that election results be certified taking into account the affidavit ballots of the four registered voters. The appeal must be dismissed.

Petitioner and respondent Fensore were candidates for election to the Board of Education of the Lindenhurst Union Free School District. After canvassing the votes cast during the election, including absentee ballots, the district clerk reported a tie between petitioner and Fensore, 2359 to 2359. When the district clerk reported the tie vote, it did not include six paper ballots cast by individuals whose names could not be found on the voter registration lists at the time they presented themselves to vote. Because several challenges and complaints had been made by candidates, the district clerk had the voting machines sealed and impounded and advised all candidates that the machines would be opened for inspection at the local board of elections on Monday, June 21.

At that time, all candidates appeared, including petitioner, who was represented by counsel. Inspection of the voting machines confirmed the tie vote, which again did not take the affidavit ballots into account. Counsel for respondent board advised all candidates and their attorneys that the board would review the six challenged ballots at a meeting on Thursday, June 24. Counsel for respondent board thereafter advised the board that when a voter presents himself to vote and his name cannot be found on a registration list, the voter may only be allowed to cast a vote in accordance with Education Law '2019-a(1). That statute requires the voter to either secure a court order directing that he or she be allowed to vote in the manner in which other votes are cast, or alternatively, the voter may request, swear to and subscribe an affidavit stating, among other things, that the voter has duly registered and remains a duly qualified voter in the district. In the latter case, the voter may cast a paper ballot.

The parties agree that the board of education supplied the statement signed by the six voters whose ballots were in question. The board counsel's review of the voter's statements, however, indicated that they were not sworn to by the prospective voters and therefore did not constitute "affidavits" as required by Education Law '2019-a. Based upon counsel's advice, the board voted to disqualify all six of the challenged ballots and ordered a runoff election for the contested seat. A runoff election scheduled for July 21, 1993, was subsequently postponed until July 28, 1993. I denied requests to stay the runoff. Petitioner commenced this appeal on June 29, 1993.

Petitioner contends that since four of the six disqualified ballots were cast by voters who are registered to vote, those votes should be counted in determining the outcome of the election. Petitioner also contends that it is improper not to count the ballots in question since the forms which allegedly failed to comply with Education Law '2019-a were supplied by respondent board and had been used for the same purpose in past elections.

Respondents contend that Education Law '2019-a was patterned after analogous provisions of the Election Law, and that in construing these provisions and analogous statutes, the courts have consistently invalidated ballots which did not conform to the precise requirements of governing statutory provisions. In addition to the fact that the ballots in question were not accompanied by an affidavit, or any other properly sworn statement, respondent Fensore alleges that a number of additional inconsistencies exist between the form of the statement used in this case, and the form of the sworn statement required under '2019-a.

The issue before me in this appeal is whether or not respondent's disqualification of the votes in question was arbitrary, capricious or contrary to law. My review of the record confirms respondent's conclusion that the voter statements in question did not comply with the very explicit provisions of '2019-a(1)(b). Instead, the language used on the statement in question appears to be derived from Education Law '2019, which contains requirements substantially different from those set forth in '2019-a(1). Although the defective statements were supplied by an agent of the board of education, in accordance with case law relating to analogous provisions of the Election Law, the source of the error is not relevant and the ballots cast are still invalid (Matter of Roe v. Palmer, 101 Misc. 2d 1051; see also McClure v. D'Apice, 116 AD 2d 721; Carola v. Saratoga County Bd. of Elections, 180 AD2d 962). Moreover, petitioner's argument that the ballots should be counted because it was later determined that four of the six voters were registered ignores the fact that the procedure called for in '2019-a was intended to address that situation. If it is determined that a voter who cast an affidavit ballot was not registered, the ballot may not be counted (Education Law '2019-a(3)(a)). The ballots can only be considered valid if the voter is registered and the procedure specified was complied with, and the record reveals that it was not.

In my view, to resolve any uncertainty as to the wishes of the electorate with respect to the vacancy on the board of education, respondent board properly called for a run-off election. Under the circumstances, petitioner has failed to satisfy his burden of demonstrating that respondent's actions were arbitrary, capricious, or contrary to law. Accordingly, the petition will be dismissed (Appeal of Albert, et al, 32 Ed Dept Rep 615).

Although the record before me does not indicate the outcome of the runoff election, I am advised that no appeal has been filed to challenge the results of that election. The board of education should now be fully constituted and able to carry out its statutory responsibilities for the benefit of the students of the Lindenhurst Union Free School District.

THE APPEAL IS DISMISSED.

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