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Decision No. 13,195

Appeal of the BOARD OF EDUCATION OF THE FONDA-FULTONVILLE CENTRAL SCHOOL DISTRICT from actions taken at a special meeting of the district.

Decision No. 13,195

(June 10, 1994)

Leonhardt & Kruger, P.C., attorneys for petitioner, Robert J. Kruger, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks an order pursuant to Education Law '2037 annulling the results of a special meeting conducted by the Board of Education of the Fonda-Fultonville Central School District on June 1, 1994. The appeal is sustained.

On June 1, 1994, petitioner conducted a special meeting to submit to the voters of the district three propositions. Pursuant to Education Law '2035, voting machines were used. When the polls closed at 9:00 p.m., it was discovered that the county official who set up the voting machines had failed to lock all levers not to be used in the voting. As a result of this failure, votes were cast in several columns other than those designed on the face of the ballot. In addition, numerous individuals were able to cast more than one ballot per proposition. Upon reviewing the results, the election inspectors and the district clerk declared that they were unable to certify any election results.

The Commissioner of Education will set aside the results of a school district election on the basis of alleged irregularities only when it is probable from the evidence that the irregularities affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, affd 26 NY2d 709; Appeal of the San Remo Civic Assn., 28 Ed Dept Rep 175; Appeal of Steenrod, 28 id. 131). An election may also be set aside where irregularities are "so pervasive in nature as to vitiate the electoral process" (Matter of Gilbert, 20 Ed Dept Rep 174). Moreover, where the results of an election do not accurately reflect the will of the voters due to voting machine malfunction, those results must be set aside as well (see, Matter of D'Amico, 12 Ed Dept Rep 66).

The record before me clearly shows that the voting machines used in the June 1st vote were not properly set up. As a result, on at least two of the three propositions before the voters, the number of ballots cast exceeded the total number of voters. Based on the foregoing, it is apparent that voting machine malfunction has vitiated the electoral process and a new vote is necessary (Appeal of St. Onge, 30 Ed Dept Rep 176; Matter of D'Amico, supra; Matter of Chase, 1 id. 134).


IT IS ORDERED that petitioner proceed forthwith to call a special meeting of the district for the purpose of revoting on the three propositions presented to the voters on June 1, 1994.