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Decision No. 13,503

Appeal of SHARON S. HORTON from action of the Board of Education of the City School District of the City of Canandaigua and Cheryl Anne Brewer, regarding the conduct of a school district election.

Decision No. 13,503

(November 6, 1995)

Harris, Beach & Wilcox, Esqs., attorneys for respondent, James A. Spitz, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for the Board of Education of the City School District of the City of Canandaigua ("respondent"), seeks to set aside the May 2, 1995 election. The appeal must be dismissed.

On May 1, 1995, respondent Brewer, a candidate for the board of education, sought and received permission from an assistant superintendent to distribute campaign material on school grounds at student dismissal time. The next day, respondent Brewer handed out campaign literature outside the 100 foot poll marker. However, on one occasion during that day Brewer leafleted within 100 feet of the polling place on school grounds, in violation of Education Law '2031-a. After a complaint was made, the chief election inspector spoke to Brewer. He also checked on her location throughout the balance of the election and found no further violation of the anti-electioneering provisions of law. Brewer defeated petitioner by 145 votes. This appeal followed.

Petitioner asserts that respondent allowed Brewer to use school premises and supplies to support her campaign, and that respondent permitted her to campaign in the school parking lot within the 100 foot marker during the election. Petitioner further asserts that respondent failed to check the registration of the voters. Respondent contends that Brewer did not use school supplies to support her campaign, that it is within respondent's legal authority to allow candidates to hand out campaign material on school grounds the day before the election, and that one instance of electioneering does not warrant overturning the election. Respondent further asserts that petitioner has failed to demonstrate that any irregularities affected the outcome of the election.

To overturn an election, petitioner must prove improper conduct by respondent, such as a violation of law or regulation (Appeal of Goldman, 35 Ed Dept Rep ___, Decision No. 13487, dated September 29, 1995; Appeal of DiMicelli, 28 Ed Dept Rep 327). Petitioner must also establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd. 26 NY2d 709; Appeal of Goldman, supra; Appeal of Roberts, 33 Ed Dept Rep 601), were so pervasive that they vitiated the electoral process (Appeal of Roberts, supra; Matter of Gilbert, 20 Ed Dept Rep 174), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to 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 it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Goldman, supra; Appeal of Roperts, supra).

The record reflects two instances in which respondent erred in the conduct of this election. First, respondent authorized only petitioner to distribute campaign literature during school hours on school premises. Respondent contends that it would have allowed other candidates to distribute literature, but no other candidates requested permission to do so. Since only one candidate distributed literature, however, it at least creates an appearance of endorsing her over the others. But because petitioner submits no evidence that respondent's actions altered the outcome of the election, there is no basis to overturn the election results.

The second irregularity was a single incident of improper electioneering by Brewer within 100 feet of the polling place. The superintendent's investigation revealed that this act was an isolated incident. Petitioner offers no evidence that this isolated incident affected the outcome of the election. Accordingly, I find this is not grounds to overturn the election. Petitioner also appears to claim that respondent somehow violated election laws by failing to check voter registration. Any district resident who is registered to vote with the county board of elections is entitled to vote at school district meetings and elections provided that they voted in a general, special or primary election at least once within the last four calendar years (Election Law '5-612(2); Appeal of Prosky, 34 Ed Dept Rep 202; Appeal of Demos, 34 id. 54; Appeal of Shortell, 27 id. 190). Any qualified voter may challenge the right of a person to vote at the time when he requests a ballot (Education Law '2609(5)). A person who has the right to challenge a voter and permits him to vote without challenge, is not allowed to object to the proceedings of the meeting because such unqualified person participated (Matter of Katz, 18 Ed Dept Rep 276; Matter of Kavanaugh, 5 id. 19).

In this case, petitioner offers no proof that any unqualified voters were allowed to vote. Moreover, petitioner did not initially challenge any voters' qualifications and cannot now object to unqualified voters' participation. Furthermore, petitioner fails to present any evidence that any unqualified voters did, in fact, vote. Accordingly, petitioner has failed to meet her burden of proof, and I find no basis upon which to overturn this election.

I have considered petitioner's remaining claims and find them without merit.