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Decision No. 13,956

Appeal of WILLIAM ROBNETT and HARRY MORITH from action of the Board of Education of the Akron Central School District regarding election irregularities.

Decision No. 13,956

(June 11, 1998)


Hodgson, Russ, Andrews, Woods & Goodyear, LLP, attorneys for respondent, Karl W. Kristoff, Esq., of counsel

MILLS, Commissioner.--Petitioners, residents of the Akron Central School District, seek an order invalidating the election held on June 3, 1997, and declaring that a new election be held. The appeal must be dismissed.

On March 3, 1997, the Board of Education of the Akron Central School District ("respondent"), conducted an election to approve a $293,999 bond proposition for the construction of an outdoor track and a computer room. The proposition was defeated by a vote of 141 in favor to 157 against.

Respondent submitted the proposition for a re-vote on June 3, 1997. Prior to the June 3 election, the Erie County Board of Elections inspected respondent’s two voting machines and declared that they were in proper working order. Each machine had two counters – a public counter and a protector counter – and both counters would be used to record the votes. Respondent planned to operate one machine (Machine #1) while maintaining the second (Machine #2) as a spare to be used in the event that the other malfunctioned.

The polls opened at noon on June 3, 1997. Soon thereafter, respondent’s district clerk discovered that the public counter on Machine #1 was advancing, but that the protector counter was not moving. Thereupon, respondent’s chief election inspector replaced Machine #1 with Machine #2. He noted that Machine #1 had already recorded 26 votes on the public counter and, at that point, respondent’s voter registry had also recorded 26 registered voters that day. He concluded, therefore, that the public counter was working.

At 6:30 p.m., a cable on Machine #2 broke. The chief election inspector immediately sealed the machine and replaced it with Machine #1.

After the polls closed at 8:00 p.m., the votes were tallied. This tally indicated that the voters approved the proposition by 163 votes. Specifically, the tallies from both machines reported 624 "Yes" votes and 464 "No" votes. This, in addition to the 5 blank votes recorded, totaled 1093 votes, the same as the number of voters listed in the voter registry on June 3, 1997. The tally for the absentee voters registered 11 "Yes" votes and 8 "No" votes. Thus, the proposition was approved by a margin of 635 to 472.

Respondent admits that it did not inform the Board of Elections that the machines had malfunctioned. However, in a sworn affidavit, the district clerk attested that, shortly after the elections, she contacted the Erie County Board of Elections and was informed that, although the public counter and the protector counter usually advance together, the public counter is more important, and it had functioned properly.

Petitioners commenced this appeal on June 28, 1997. On July 21, 1997, I denied their request for interim relief pending a determination on the merits.

Petitioners challenge the conduct of the election and request that I invalidate the results because of voting irregularities. Specifically, they argue that respondent acted improperly when it replaced Machine #2 with Machine #1, which, earlier, had a problem, and allowed individuals, unrelated to the Board of Elections, to attempt to repair the machines. Petitioners also request that I instruct respondent on the proper procedures to conduct an election and that I ensure respondent’s compliance therewith in future elections.

Respondent maintains that the petition fails to state a cause of action and that its actions were proper in all respects.

Initially, I must address a procedural issue. In their reply, petitioners raise a new allegation requesting my immediate attention with respect to an August 5, 1997 election. Pursuant to 8 NYCRR ""275.3 and 275.14, the purpose of a reply is to respond to procedural defenses or new material contained in the answer. A reply is not meant to buttress allegations in the petition or add assertions that should have been in the petition (Appeal of Cole, et al., 37 Ed Dept Rep 407; Appeal of Rampello, 37 id. 153). Therefore, although I have reviewed petitioners’ reply, I will not consider those portions of it that contain new allegations and material not responsive to the procedural defenses set forth in the answer.

The appeal, nevertheless, must be dismissed on the merits. There is a presumption of regularity in the conduct of an election (Appeal of Morris, et al., 37 Ed Dept Rep ______, Decision No. 13936, dated May 8, 1998). The Commissioner of Education will not set aside the results of a school district election in the absence of evidence that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, aff’d 26 NY2d 709; 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’dsubnomCapobianco v Ambach, 112 AD2d 640). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an 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). Petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Pickreign, 28 Ed Dept Rep 163).

Petitioners have not met that burden here. While there may be a temptation to assume that the votes were affected by the voting machine malfunction, the evidence submitted by petitioners does not support that conclusion.

The record before me contains several affidavits of individuals attesting that they observed voters leave the voting site without voting, because they could not wait for the machines to be repaired. The affidavits, however, fail to mention how many individuals left without voting. Indeed, none of the persons who purportedly left have submitted an affidavit in support of the petition or have lodged a complaint with respondent or the Board of Elections. Rather, by way of contrast, the affidavits of the chief election inspector and the district clerk establish that the election was not affected by the malfunction of the machines. The public counters properly registered each vote, and the results were consistent with the number of registered voters listed in respondent’s voter registry that day. Moreover, it should be noted that, even if a machine malfunctioned, its use would not constitute sufficient grounds to set aside the election absent proof, by petitioners, that, but for the use of the machine, the outcome of the election might have been different (Matter of Silverman, 11 Ed Dept Rep 116).

The bond proposal was approved by 163 votes. Absent proof that at least 163 individuals left the site without voting, or that the machines did not accurately register the votes cast, petitioners have not met their burden of establishing that the machine malfunction affected the outcome of the election, or that the results of the election do not accurately reflect the will of the voters because of the alleged irregularities (Matter of D’Amico, 12 Ed Dept Rep 66; cf., Appeal of Sharp, 35 id. 471).

Petitioners have similarly failed to support their allegations of unprofessional conduct by respondent in allowing other voters to attempt to repair the machines. Respondent denies knowledge of this fact, and, in any event, the record contains no proof that these individuals tampered with the machines or that the votes were affected by their actions. Mere speculation that a voting machine might possibly have been tampered with is not a sufficient basis for setting aside the results of a school district election (Matter of Manno, et al, 23 Ed Dept Rep 172).

Finally, to the extent petitioners request that I advise respondent on election procedures, petitioners, in effect, seek relief in the form of an advisory opinion. The jurisdiction of the Commissioner in an appeal brought pursuant to Education Law "310 is appellate in nature, and does not provide for the type of advisory relief which petitioners seek (Appeal of Lambert, 37 Ed Dept Rep _______, Decision No. 13937, dated May 9, 1998).

I have considered the parties’ remaining contentions and find them without merit.