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Decision No. 13,606

Appeal of BARBARA HARRIS from action of the Board of Education of the North Babylon Union Free School District and Gail Lundgren, regarding the conduct of an election.

Decision No. 13,606

(May 9, 1996)

Guercio & Guercio, Esqs., attorneys for respondent board, Ralph C. DeMarco, Esq., of counsel

Wasserman & Steen, Esqs., attorneys for respondent Lundgren, Lewis M. Wasserman, of counsel


MILLS, Commissioner.--Petitioner challenges the election of Gail Lundgren ("respondent Lundgren") to the board of education of the North Babylon Union Free School District ("respondent board"). The appeal must be dismissed.

On June 14, 1995, respondent board held a combined annual and special election and budget vote, pursuant to Appeal of Ell (34 Ed Dept Rep 394). Petitioner and respondent Lundgren, the incumbent, were opposing candidates for a three-year term of office for one of three board positions. Unlike previous elections in the district, all voting at this election occurred at a single, central location, between the hours of 12:00 p.m. and 9:00 p.m.

The official results of the election indicate that Harris received 1,203 votes on the voting machines, one paper ballot cast at the polls, and 17 absentee ballots, for a total of 1,221. Lundgren received 1,198 votes on the voting machines, four paper ballots cast at the polls, and 20 absentee ballots, for a total of 1,222. Petitioner objects to the counting of four absentee votes cast for Lundgren by permanently disabled voters, on the ground that they contained pieces of paper folded within the ballots. These four ballots were originally counted for Lundgren when the votes were canvassed immediately after the close of the polls, but were then deleted from the count at a meeting held in the district clerk's office on June 15, 1995, the day after the election. Thereafter, on June 19, 1995, after consulting with the district's attorney, the chief inspector of elections and the district clerk decided to count the four absentee ballots for Lundgren, making Lundgren the winner by a margin of 1,222 to 1,221, and asked the board to certify the election results, which it did at a special meeting that same day by a vote of four to two.

Petitioner contends that the election was flawed in many ways, including substantial crowding and confusion before the opening of the polls, electioneering by and on behalf of board members, and use of a "ticket system" for admission to the voting machines which may have allowed some voters to vote more than once. She also alleges that numerous eligible high school seniors were denied the right to vote, that an inspection of the voting registration records after the election revealed a number of inconsistencies, and that at one point a number of unopened absentee ballots were left unattended. Most significantly, petitioner contests the counting of the four absentee ballots from permanently disabled voters on behalf of Lundgren.

Respondent board generally denies petitioner's allegations, and originally objected that petitioner had failed to join Lundgren as a respondent. By letter dated February 7, 1996, petitioner was directed by my Office of Counsel to serve the notice of petition and petition upon respondent Lundgren, which she did on February 15, 1996, pursuant to 8 NYCRR '275.1 (see, e.g., Appeal of Heller, 34 Ed Dept Rep 220). Respondent Lundgren also generally denies the allegations of the petition, contends that the petition does not contain a clear and concise statement of petitioner's claim, and claims that the paper contained in the four contested ballots was affixed to the ballots prior to the time they were received by the voters. Both respondents rely on the presumption of regularity in the conduct of an election.

The presumption of regularity was discussed at some length in Appeal of Walsh (34 Ed Dept Rep 544 at 547-548):

There is a presumption of regularity in the conduct of an election (Appeal of Ben-Reuben, et al., 33 Ed Dept Rep 299). 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, 301 NYS2d 644, aff'd 26 NY2d 709, 308 NYS2d 873; Appeal of Brower, 29 Ed Dept Rep 145), are so pervasive in nature as to vitiate the electoral process (Appeal of Gilbert, 20 Ed Dept Rep 174), or that the irregularities demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the election provisions of the Education Law (Appeal 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, 492 NYS2d 157). 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).

In view of the foregoing, I find that petitioner has not met her burden of proof in this case. Although petitioner asserts that respondent conducted the election in a less than ideal manner, she has failed to provide concrete evidence demonstrating that the outcome of the election was affected by the alleged irregularities or that there was sufficient laxity in adherence to the Education Law to warrant overturning the election. Many of petitioner's allegations are general and conclusory in nature, and, even if true, would not require the overturning of the election.

The question arising with respect to the four (4) absentee ballots is somewhat more difficult. It appears that all parties agree that these ballots were received from permanently disabled voters who are entitled to an absentee ballot pursuant to Education Law '2018-a(2)(g). It appears from the affidavits of the district clerk and chief inspector of elections that " . . . the paper included within the aforesaid four (4) absentee ballots was a photocopy of the absentee voter oath which the District packages with its mailing to permanently disabled District residents." It is unclear from the record whether a copy of the absentee voter oath was sent only to permanently disabled voters, or was also sent to other applicants for absentee ballots (whose ballots are not at issue herein). The record is also somewhat unclear as to whether the absentee voter oath was actually physically attached in some way by district employees to the paper ballots, but in this respect the answer submitted by respondent Lundgren (who was a member of the board prior to the election in question) states that the absentee voter oaths were "annexed" to the absentee ballots and "were affixed to the ballot when they were received by these voters . . ." All parties also agree that the instructions printed on the absentee ballots (which were prepared by a private contractor for the district) did not comply with Education Law '2018-a(4), which requires instructions as to the proper marking of the ballot in accordance with Education Law ''2032 and 2034.

Education Law '2034(3) provides in pertinent part as follows:

3. The whole ballot is void if the voter

a. does any act extrinsic to the ballot such as enclosing any paper or other article in the folded ballot . . .

Under this provision, it is critical to determine whether any of the four permanently disabled voters did "any act extrinsic to the ballot . . ." No party to this action has cited a relevant case in which a paper was included in an absentee ballot in a school district election, nor has research produced such a case. In People ex rel. Brown v. Keller (170 AD 324, aff'd 216 NY 741), the Appellate Division construed Election Law '358, the antecedent to the current Election Law '9-112, which contains the same statutory language as Education Law '2034(3). There, a voter incorrectly placed his ballots within an envelope and sealed it before delivering it to an election inspector who then incorrectly deposited the envelope in an enrollment box rather than in the ballot box. By way of dictum, the Appellate Division stated that placing the ballot in an envelope was the performance of an act extrinsic to the ballot. The Court construed the phrase "[i]f a voter shall do any act extrinsic to the ballot itself, such as inclosing any paper or other article in the folded ballot [then Election Law '358]" to include any act ". . . which will have the effect to identify the same, as, for instance, the putting of a paper or other article within the folded ballot would. Obviously, the putting of the ballot in a sealed envelope would have at least an equally identifying effect, if not more so." While the case is not directly on point, and deals with a similar provision of the Election Law rather than the Education Law, it does convey the principle that the voter must take some affirmative, willful action to come within the statutory prohibition.

Although not entirely clear from the record, it appears more likely that the photocopies of the absentee voter oath were actually attached to the absentee ballots by the district, and not by the voters. I therefore hold that these voters did not commit any act extrinsic to the ballot merely by returning the ballot in the same condition they received it, i.e., with another paper attached to it, particularly in the absence of proper printed instructions on the ballot itself. As a result, I cannot find that the counting of the four ballots from permanently disabled voters by respondent district was improper, and I therefore decline to grant the relief sought by petitioner.

I have considered the other contentions of the parties and find them without merit. Although I dismiss the appeal, I strongly urge the district to avoid the repetition of the problems that allegedly arose at this election, through better and more thorough training of election workers and officials in operating and controlling access to voting machines, verifying registration properly, and generally maintaining order at the polls. I especially urge that the district re-examine its practice of attaching or enclosing unnecessary papers with paper ballots, and that it carefully review the instructions required by statute with its printer.