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Decision No. 13,281

Appeal of RALPH D. FRIERS from action of the Board of Education of the Fonda-Fultonville Central School District and Russell Kelly concerning a school district election.

Decision No. 13,281

(October 31, 1994)

Leonhardt & Kruger, P.C., attorneys for respondent board of education, Robert J. Kruger, Esq., of counsel

SOBOL, Commissioner.--Petitioner, an unsuccessful candidate for election to respondent board of education, seeks an order directing a run-off election. The appeal must be dismissed.

On May 4, 1994, respondent Board of Education of the Fonda-Fultonville Central School District held its annual election. Seven candidates sought three positions on the board. The election results were:

Langdon 756 votes

Downing 700 votes

Kelly 593 votes

Friers 592 votes

Case 450 votes

Moore 422 votes

DeMallie 375 votes

Langdon, Downing and Kelly were declared winners. This appeal ensued.

As a preliminary matter, petitioner offers new allegations and exhibits in his reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR 275.3). It is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been contained in the petition (Appeal of Konkoski, 33 Ed Dept Rep 303; Appeal of Taber, et al., 32 id. 346; Appeal of Mermelstein, 30 id. 119). Accordingly, I have not considered the new allegations and exhibits included in petitioner's reply.

Petitioner, noting that he lost by one vote to respondent Kelly, contends that the election results are invalid and that a tie must be declared between himself and Kelly. In support of his petition for relief, petitioner contends that one more person voted than signed the vote register. Petitioner also asserts that a nonresident of the district voted in the election. Petitioner further maintains that one of the voting machines used in the election was not working properly. Petitioner requests that I order a run-off election between petitioner and Kelly.

To invalidate the results of a school district election, it is necessary to establish not only that an irregularity occurred, but also that the irregularity probably had an effect on the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Steenrod, 28 Ed Dept Rep 131; Appeal of Young, 26 id. 272). Moreover, the improprieties alleged must be substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). Finally, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). In this appeal, petitioner has not met that burden.

Petitioner contends that one person voted who did not sign the vote register. He notes that the outside counters on the voting machines registered 1,438 votes, but only 1,437 voters signed the register. However, the record indicates that after the votes on the voting machines were counted and recorded, it was discovered that the handle to close the curtain on one of the machines had been left open. In that position, the machine could not be locked. An inspection was made to ensure that no lever was in a down position, and subsequently, the handle was moved to the close position to lock the machine. The moving of the handle to lock the machine advanced the outside counter by one. However, no additional vote was registered since no lever was in a down position. Accordingly, the discrepancy between the number of voters who signed the register is accounted for. Moreover, even if the discrepancy could not be explained, it would not be a basis for granting petitioner a run-off election, because petitioner has failed to show that such an irregularity affected the election. The "extra vote" may have been cast in favor of petitioner or any one of the other five candidates, rather than Kelly.

Petitioner also alleges that an individual who was not a district resident was improperly allowed to vote. While the record on this point is unclear, even if petitioner's allegations were true, it would not be enough to overturn the election results. There is no proof in the record that the allegedly unqualified voter voted against petitioner. That individual might well have voted for petitioner or for any other candidate rather than Kelly. Mere speculation as to how the mystery voter may have voted is an insufficient basis on which to annul election results (Matter of Thomas, 22 Ed Dept Rep 238; Matter of Jongebloed, 20 id. 60).

Finally, petitioner contends that one of the voting machines was not working properly. He has filed affidavits from three individuals who state that the machine did not close or open smoothly and that they needed help closing the curtain. There is no indication, however, that these mechanical problems prevented anyone from casting their ballot. Accordingly, this not a basis for overturning the election results.