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Decision No. 13,783

Appeal of LYNN FRASER-MCBRIDE, CAROL BEN-REUBEN, MICHAEL REAUX, and VELENE ACQUAH, 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, Grace Anker, Benjamin Consolazio, Len Sarver and Anthony Mosca, as candidates for the Board of Education, relating to a school district election.

Decision No. 13,783

(June 25, 1997)

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

Joseph G. Goubeaud, Jr., Esq., attorney for respondents Anker, Consolazio, Sarver and Mosca

MILLS, Commissioner.--Petitioners, unsuccessful candidates for election to the Board of Education of the City School District of the City of Mount Vernon ("respondent board"), challenge the results of the election held on May 7, 1996, and seek an order directing that a new election be held for the contested seats on the board, citing election irregularities. The appeal must be dismissed.

As a threshold procedural matter, I must consider whether, pursuant to Commissioner's Regulation '276.5, to accept a supplemental affidavit of Gloria Coleman which was received by my Office of Counsel on September 16, 1996. Attached to this supplemental affidavit was a cover letter from Gloria Coleman on behalf of the Coalition for the Empowerment of People of African Ancestry (CEPAA) purporting to submit this material in connection with this matter and an entirely separate appeal, CEPAA v. City School District of the City of Mount Vernon, et al., Decision No. 13767 (essentially the same respondents as the instant matter) concerning matters that arose prior to the May 6, 1996 election. Inasmuch as this supplemental affidavit of Ms. Coleman, together with extensive exhibits and documentation, was not submitted by any of the petitioners, it is not properly a part of the record on this appeal. Non-parties may not, on their own initiative, submit papers as part of the appeal of another party. There is nothing connecting the petitioners to these documents and the attempt by a non-party to submit the same was wholly improper. Therefore, I have not considered any of the contents of Ms. Coleman's affidavit in rendering a decision in this matter.

On May 7, 1996, respondent board held its annual election to fill four seats on the board. Following the election, the district clerk tabulated the machine and absentee votes:

Name of Candidate Number of Votes

Anker 5,650

Consolazio 5,201

Sarver 5,106

Mosca 5,063

McBride 4,855

Ben-Reuben 4,699

Reaux 4,593

Acquah 4,246

On May 14, 1996, the district recanvassed the votes including affidavit ballots, and declared the following results:

Name of Candidate Number of Votes

Anker 5,565

Consolazio 5,283

Sarver 5,189

Mosca 5,156

McBride 4,960

Ben-Reuben 4,802

Reaux 4,687

Acquah 4,277

Based on these totals, respondents Anker, Consolazio, Sarver and Mosca were elected to the board for a three-year term commencing July 1, 1996. Petitioners commenced this appeal. Petitioners contend that there were sufficient irregularities in the conduct of the election and vote to justify setting aside the results. Respondent board contends that petitioners have failed to demonstrate by competent evidence that irregularities affected the outcome of the election.

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 election in the absence of evidence 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 Roberts, 33 Ed Dept Rep 601), are so pervasive that they vitiate 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 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, 492 NYS2d 157). Implicit in these decisions is the 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 Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483). To warrant setting aside an election, petitioner must establish that the improprieties are substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). 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). Upon the record before me, I find that petitioners have failed to meet that burden.

Petitioners allege numerous types of irregularities in the conduct of the election. I have grouped petitioners' allegation into six categories.

Absentee Ballots. Petitioners contend that respondent board violated various provisions of Education Law '2018-a regarding absentee ballots. Petitioners further allege that respondent board issued, accepted and counted absentee ballots in a manner to systematically invalidate and exclude absentee ballots by African-American voters. Specifically, petitioners maintain that respondent board failed to post and make available a list of all persons to whom absentee ballots had been issued and that such failure prevented them from having an opportunity to challenge any disputed ballots. Petitioners have provided an affidavit that in one district, the Captain of Inspectors took the list from the district official in charge of delivering the list to the various election districts, signed for it, then tossed the list into a case on the floor behind her. Respondent board contends that all of the inspectors were told to post the list and that the list was delivered to the inspectors in each of the election districts. While respondent board indicates in its answer that the inspector referred to in petitioners' affidavit denied removing the list, no affidavit was provided from this individual. Other than their description of the instructions provided to inspectors, respondent board has not provided any credible evidence affirmatively demonstrating that the list was actually posted in a "conspicuous place or places during the election" as required by Education Law '2018-a(6)(b). Nor do they effectively refute the affidavit provided by petitioners. Therefore, since respondent board has not demonstrated that petitioners have waived their right to challenge the absentee ballots, I will review petitioner's allegations concerning the disputed absentee ballots.

As a threshold matter, petitioners have annexed an exhibit to the petition with 378 names labeled "Absentee Ballots". Petitioners refer to this list as the "established list" of absentee ballots. It is not clear whether petitioners are asserting that this is a list of persons issued absentee ballots or a list of persons who cast and delivered absentee ballots to the polls.

Respondent board alleges in its answer both that "There were 379 absentee ballots and none were counted twice" and that there were "... 379 people who applied for absentee ballots." Thus, it appears that respondent board alleges that exactly the same number of people applied for and cast absentee ballots.

Petitioners allege that three absentee ballots were counted twice, 35 persons on the "established" list were unqualified voters, 34 ballots contained no envelope or supporting documentation and 18 were not on the "established" list and were added to the vote count at the recanvassing. With respect to the 3 votes that petitioners claim were counted twice, petitioners' exhibit 8 refers to 3 people, but cites only two names that appear twice on the above-referenced list of persons who received and/or voted by absentee ballot. While it is true that the names on the published list appear twice, petitioners have presented no evidence that these individuals actually returned two absentee ballots each, or that these absentee ballots were actually counted twice by the inspectors initially or at the recanvass of the vote on May 14, 1996.

With respect to the 35 unqualified voters whose names appear on the above-referenced list as having been issued and possibly cast an absentee ballot, respondent board does not dispute that some unqualified voters may have received absentee ballots and returned the same. However, respondent board asserts that none of these ballots were counted. Petitioners' exhibit 8 also indicates that these 35 absentee ballots were not in fact counted, but declared defective. Therefore, there is no basis to conclude that these ballots affected the outcome of the election. However, petitioners are correct in their assertion that it is the responsibility and obligation of respondent board to be more diligent in checking the applications for absentee ballots to assure that non-registered, and therefore unqualified individuals, are not issued absentee ballots.

Based on reviewing petitioners' exhibit 8, it appears that petitioners contend that 34 qualified African-American individuals were issued absentee ballots but their absentee ballots were not delivered to the polls nor reviewed at the recanvass, because respondent board "omitted" these absentee ballots to affect the outcome of the election. There is no evidence to support petitioners' theory in this regard. Petitioners have not included affidavits to show that any of these 34 individuals in fact completed an absentee ballot and delivered it to the polls in a timely fashion to be included in the vote count. To the extent that these individuals are included on a list of persons issued absentee ballots, petitioners have not proven any wrongdoing on the part of respondent board, merely that individuals failed to return their absentee ballot. To the extent that these individuals are included on a list of persons who cast absentee ballots but these ballots did not appear at the recanvass to be counted as valid or invalid, petitioners have alleged a possible irregularity. Respondent board denies that 34 qualified African-American absentee ballots were excluded.

Petitioners allege that 18 absentee ballots were cast by individuals whose names were not on the above referenced "established list" of absentee ballots. Petitioners contend that nevertheless these absentee ballots were included in the vote count at the recanvass. Respondent board does not address this allegation, therefore I will deem it true. To the extent that respondent board counted absentee ballots from persons whose names do not appear on the list required to be prepared in accordance with Education Law '2018-a of all persons issued absentee ballots, this action is a technical violation of this statute. Nevertheless, petitioners have neither alleged nor proven that these 18 individuals were not qualified to vote nor eligible to be issued an absentee ballot. Petitioners have the burden of demonstrating that these ballots were improperly included in the vote count and impacted the outcome of the election.

Petitioners have also established, and respondent board concedes, that the absentee ballots delivered to election districts 7 and 17 were not opened and counted at the polls as required by the Education Law. These ballots were ultimately opened and counted at the recanvass on May 14. While this is technically a violation of Education Law '2018-a(10), there is no allegation challenging specific ballots, e.g., that any of these voters were unqualified or ineligible to receive an absentee ballot, or that the ballots were otherwise defective.

Petitioners also allege and respondent board concedes that in some instances, inspectors did not make the appropriate entry in the poll registers when someone voted by absentee ballot. These are technical violations that did not impact the outcome of the election.

Absentee ballots issued to permanently disabled individuals. Petitioners allege that there are 247 qualified voters on the County of Westchester's list of permanently disabled voters and that respondent board did not mail absentee ballots to all of the individuals on that list. Petitioners contend that some 155 voters, many of them African-American, were not mailed absentee ballots. Respondent board denies not delivering absentee ballots to everyone on the permanently disabled list maintained by the county.

Petitioners have not provided affidavits from anyone on the list of permanently disabled voters to the effect that they did not receive an absentee ballot. Petitioners also allege that respondent board permitted the winning candidates and district personnel to personally deliver absentee ballots to some of the individuals on the permanently disabled list, while others received their absentee ballots by mail.

Education Law '2018-a(2)(g) provides that a board shall "send an absentee ballot to such [permanently disabled] voter at his last known address ... The board of education shall determine whether such ballot shall be sent by first class or certified mail. All such ballots shall be mailed in the same manner (emphasis supplied) as determined by the board of education. The board of registration shall make an appropriate entry in the registration indicating the fact that an absentee ballot has been sent and the date of mailing."

The Legislature has carefully prescribed a process for the delivery of absentee ballots to permanently disabled voters. In addition to specifying delivery by mail, the statute requires a uniform type of mail delivery. In this instance, petitioners have alleged and respondent board has not disputed that two methods of delivery were used: personal delivery and mail. This is a violation of '2018-a(2)(g). In requiring uniform delivery by mail, it is evident that the Legislature wished to assure that this class of voters is treated uniformly. However, petitioners have not demonstrated that any permanently disabled voters did not receive an absentee ballot or that any irregularities occurred in the counting of these ballots. To the extent that respondent board selectively had district personnel personally deliver absentee ballots in lieu of mailing such ballots, respondent board is admonished to provide absentee ballots in a uniform fashion to all permanently disabled voters, in the future, in conformity with the requirements of Education Law '2018-a(2)(g).

Affidavit Ballots. Petitioners allege that respondent board's poll ledgers were inaccurate and therefore, many individuals had to vote by affidavit or paper ballot, necessitating delays and waits by voters. Respondent board contends that election officials checked the buff card for each voter and if no buff card was found, that individual was allowed to vote by affidavit ballot. A total of 368 persons voted by affidavit ballot. At the recanvass, respondent asserts that the Westchester County Board of Elections validated 217 affidavit ballots and invalidated 151 affidavit ballots.

Petitioners contend that 36 of the invalidated affidavit ballots were cast by African-American voters who were in fact qualified to vote. Respondent board responds to this contention that district officials did not validate or invalidate the affidavit ballots, but that this was done by the county. While respondent board is required to use the records of the county board of elections to determine qualified voters for school district elections, respondent board remains responsible for the conduct of the election, including the counting of affidavit ballots. In this instance, however, other than making a notation by various names on a listing of "Affidavit Ballot Listing Invalid", petitioners have not provided evidence that these individuals were registered with the Westchester County Board of Elections, otherwise qualified to vote, and properly completed the affidavit ballot. Specifically, petitioners have not provided copies of county records or affidavits from county officials tending to show that these individuals were registered and that their affidavit ballot was properly completed.

Voting machines. Petitioners maintain that at least 75 votes were cast before the opening of the polls. Respondent board disputes this claim and submits an affidavit demonstrating that what petitioners perceive as additional "votes" on the machines is the result of necessary servicing of the machines between the presidential primary held in March 1996 and the school board election in May 1996. I find respondent board's answer to be credible in this regard.

Unqualified voters. Petitioners allege that 106 votes were cast by unqualified voters whose names do not appear on the county list of registered voters and these non-qualified voters, according to the voter sign-on sheets, reside on the north side of the city in election districts that are mostly populated by caucasian residents. Respondent board replies that all 106 were qualified voters and that in addition, petitioners had the obligation to challenge any voters they believed to be unqualified to assure that those individuals voted by affidavit ballot.

In its answer, respondent board submitted an affidavit by an individual working in the clerk's office who indicated that she "spot-checked" the list of 106 allegedly unqualified voters contained in petitioners' exhibit to their petition. She also indicated that "the other names on the list were checked and all found in the other records". It is unclear from this affidavit in what other records the names of these allegedly unqualified voters were found. In addition, respondent board does not indicate specifically the basis for its conclusion that all of these voters were in fact qualified to vote in the election at issue.

Respondent board gave one example of an individual that was found to be a valid voter after correcting a typographical error in her address. Despite the paucity of documentation provided in support of its contention that the 106 voters are qualified, I agree with respondent board that petitioners are required to challenge unqualified voters prior to or at the time such voters present themselves at the polls to vote in accordance with Education Law ''2606(8) and 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 (Appeal of Horton, 35 Ed Dept Rep 168; Matter of Katz, 18 Ed Dept Rep 276). Contrary to petitioners' assertion, there is no requirement that respondent board make a list of voters available on the day of the election. Education Law '2606(6) requires that registers be filed with the clerk of the board of education not less than 2 weeks prior to the election and kept available for inspection by any qualified voter. In addition, the board of education is required to publish notice in the newspaper or post within the district that the school election district registers have been filed and note the place at which they are on file and the hours during which they will be open for inspection on each day up to the day set for the election. Petitioners have not alleged that respondent board did not make the registers or buff cards available for inspection in accordance with the applicable statutory requirements.

Other Allegations of Racial Bias

Petitioners allege that respondents assigned inspectors to polling places on a racially divisive basis and that respondents provided receptionists at polling places located on the north side of the City of Mount Vernon to assist voters but did not provide receptionists on the south side where minority voters reside.

While petitioners have provided a list of names of inspectors and their assigned districts, they have not provided proof of discriminatory intent or action on the part of respondent board. There is no requirement that a board of education provide a receptionist at each school serving as a polling place, however should a board choose to do so to assist voters it is required to do so in a nondiscriminatory manner. Petitioners have not substantiated this allegation nor have they rebutted respondent's answer that each school had a paid volunteer receptionist except Longfellow, where the principal filled in.

Therefore, I conclude that petitioners have demonstrated irregularities associated with at most 34 absentee ballots which may have been cast but not delivered to the polling places to be included in the vote count. The winning candidate with the lowest vote count, Mosca, was credited with 5,156 votes; McBride gathered the highest vote count of the group of petitioners, 4,960 votes: a difference of 196 votes. Therefore, even assuming that 34 votes were improperly omitted, and that all of those disputed votes were cast in favor of petitioner McBride, that still would not have effected the outcome of the election, which is required for me to set aside the election results. Further, while petitioners have proven several technical irregularities, these instances do not as a whole evidence pervasive errors of a magnitude sufficient to warrant overturning the election results.

Petitioners have also alleged that respondents' actions were intended to dilute and negatively impact the voting strength of African-Americans in violation of the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Pursuant to Commissioner's Regulation '276.6, I note that Gloria Coleman and CEPAA have filed a lawsuit in U.S. Federal District Court against respondents, seeking to enjoin respondents from violating state and federal law during the recent May 6, 1997 election for 5 seats on the school board and appointment of a federal monitor from the U.S. Department of Justice to enforce voting rights. In a decision dated May 1, 1997, U.S. District Court Judge Barbara S. Jones denied the plaintiffs' requested relief. Although the petitioners herein are not parties to that lawsuit, the complaint raises alleged irregularities involving the May 7, 1996 election, including racial bias,1 and seeks to vindicate the above-referenced federal and constitutional claims which are properly before the federal court and not the Commissioner.

I have reviewed petitioner's other contentions and found them without merit.