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Decision No. 13,055

Appeal of CAROLYN BEN-REUBEN, et al., from action of the Board of Education of the City School District of the City of Mount Vernon, Elia DeBenedictis as Clerk of the Board and Martin Gasparino, Adam Seiden and Barbara Ricci as candidates for the board of education, regarding the conduct of a school district election.

Decision No. 13,055

(November 24, 1993)

Tammy L. Brown, Esq., attorney for petitioners

D'Andrea and Goldstein, Esqs., attorneys for respondents Board of Education of the City School District of the City of Mount Vernon and Elia DeBenedictis, Clerk of the Board, Robert Goldstein, Esq., of counsel

Adam S. Cohen, Esq., attorney for respondents Seiden and Gasparino

SOBOL, Commissioner.--Petitioners challenge the election of two candidates for the Board of Education of the City School District of the City of Mount Vernon ("respondent board"), citing election irregularities. The appeal is dismissed.

On May 4, 1993, respondent board held its annual election. Voting occurred at twelve locations in thirty election districts. The results of that election, not including the paper ballots, were:

Gasparino- 5670 votes;

Seiden- 5655 votes;

Ben-Reuben- 5213 votes;

Reaux- 5176 votes;

Ricci- 641 votes.

The margin of victory for the winning candidates was 442 votes for Mr. Seiden and 457 votes for Mr. Gasparino. There were 301 paper ballots cast. Of that total, only 134 were valid. Twenty-eight paper ballots were improperly opened prior to the closing of the polls. Seventeen of those ballots that were otherwise valid, were not counted. The remaining eleven ballots were invalid. Inclusive of those 134 valid paper ballots, the margin of victory was 432 votes for Mr. Seiden and 449 for Mr. Gasparino.

Petitioners contend that respondent board of education's administration of the election disenfranchised an unascertainable number of duly registered voters. Petitioners seek an order overturning the election or directing a recanvass and recount of all votes. Respondents contend that petitioners have failed to demonstrate by competent evidence that any qualified voters were actually denied the right to vote or that the outcome of the election was affected by any delays or irregularities.

As a preliminary procedural matter, respondent contends that petitioners, The Coalition for the Empowerment of People of African Ancestry ("CEPAA"), Carole Morris as Chair of the Committee of CEPAA and W. Franklyn Richardson as Convenor of CEPAA, lack standing to maintain this appeal. This objection must be sustained. It is well settled that an unincorporated association, such as CEPAA, lacks standing to maintain an appeal to the Commissioner of Education (Application of Ad Hoc Committee Greenburgh Eleven UFSD, 32 Ed Dept Rep 214; Appeal of NAACP, et al., 30 id. 187). Furthermore, petitioners Morris and Richardson, as individual representatives of CEPAA, have no greater standing than the association itself (Appeal of Cassin, et al., 32 Ed Dept Rep 373; Appeal of NAACP, et al., supra). Because petitioners Morris and Richardson set forth no additional basis to establish their standing, they cannot maintain this appeal.

Petitioners also seek to raise new issues in their reply and reply affidavits which were not included in the petition. Sections 275.3 and 275.14 of the Regulations of the Commissioner of Education set forth the scope of a reply under Education Law '310 and allow a response only to affirmative defenses and new material raised in an answer. The reply does not provide an opportunity to raise new grounds for relief (Appeal of Eastman Kodak Company, 32 Ed Dept Rep 575; Appeal of Alexandreena D., 30 id. 203; Appeal of Santicola, 29 id. 213), or to buttress allegations in the petition or add assertions which should have been included therein (Appeal of Eastman Kodak Company, supra; Appeal of Brousseau, 31 Ed Dept Rep 155; Appeal of Barbara P., et al., 30 id. 198; Appeal of Pronin, 27 id. 203). Therefore, I will not consider those portions of the reply that raise new issues. Regarding the merits, there is a presumption of regularity in the conduct of an election. The Commissioner of Education will not set aside the results of a school district vote in the absence of evidence of the probability that the alleged irregularities affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd. 26 NY2d 709; Appeal of Brower, 29 Ed Dept Rep 145), are so pervasive in nature as to vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174), or that the irregularities demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the election provisions of the Education Law (Matter of Levine, 24 Ed Dept Rep 172, aff'd sub nom; Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640). Implicit in these decisions is a recognition that there are rare cases in which errors in the conduct of a school election have become so pervasive that the fundamental fairness of the election is vitiated (Appeal of Como,et al., 28 Ed Dept Rep 483). To warrant setting aside an election, the improprieties alleged must be substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). Petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Petitioners have not met their burden of proof on this appeal.

Petitioners' main contention appears to be the disenfranchisement of many potential voters due to long lines at the polling places. Although, if proven, the inability of substantial numbers of voters to cast their votes may have the effect of changing the election results (Ury v. Santee, 303 F. Supp. 119), there has been no such proof here. Rather, petitioners offer a series of affidavits by poll watchers who assert that voters left the polls without voting. This is not supported by the affidavit of even one voter who actually left the polls without voting because of the delays. In the absence of such proof, I will not set aside the election (Appeal of Como, supra; Matter of Murtagh, 19 Ed Dept Rep 179). I do note, however, that respondent should in the future make every effort to expeditiously verify voter registration to limit voters' waiting time as much as possible.

Petitioners further contend that paper ballots were not properly administered, and that some people were allowed to vote even though they were unregistered. Election Law '5-612 requires the county board of elections to deliver registration lists to school districts. When a voter appears to vote at a school district election, his or her registration is verified by looking at the school district's registration list. If the voter's name does not appear on the school district's register, then the county registration list must be checked. An individual is eligible to vote if registered with the school district or by virtue of his or her registration for the general election (Election Law '5-612(2), Appeal of Como, supra). It is true, as petitioners assert, that individuals registered in the general election whose names did not appear on respondent's registration list were probably allowed to vote in the May 4, 1993 election. However, petitioners are incorrect in their presumption that this is a basis for overturning the election, because allowing individuals to vote who are only registered with the county board of elections and not with the school district is required by law (Election Law '5-612[2]).

Respondent board concedes it erroneously opened twenty-eight ballots before the closing of the polls. Of those twenty-eight ballots, only seventeen were valid and were not counted. Thus, this irregularity clearly did not affect the outcome of an election that was decided by a margin of more than 400 votes. Furthermore, the record reflects that the votes tallied from the machines were accurate and even if all 301 paper ballots had been credited to petitioners, there would still not have been enough to elect them to the board of education.

I have reviewed petitioners' remaining contentions and find that they provide no basis for setting aside the results of this school election.