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Decision No. 14,098

Appeal of ARTHUR G. PAPPAS from action of the Board of Education of the City School District of the City of North Tonawanda and Ernest Green, Scott A. Schultz, and James Litmer, regarding the conduct of a school district election.

Decision No. 14,098

(March 27, 1999)

Richard C. Kloch, Sr., Esq., attorney for petitioner

Norton/Radin/Hoover/Freedman, attorneys for respondent board, Bernard B. Freedman, Esq., of counsel


MILLS, Commissioner.--Petitioner, an unsuccessful candidate for re-election to the Board of Education of the City School District of the City of North Tonawanda ("respondent"), challenges the results of a May 1998 school board election. The appeal must be dismissed.

On May 19, 1998, respondent held an election to fill two seats on respondent board. Respondents Ernest Green, an incumbent board member, and Scott A. Schultz received 1506 and 1498 votes, respectively, and were elected. Petitioner received 1409 votes, and respondent James Litmer received 1239 votes, and were thus defeated.

Petitioner contends that the election was conducted in such an informal and lax atmosphere that numerous irregularities occurred, making the election unfair. He alleges that it is likely that voters from outside the district were allowed to vote because voters were not required to show identification and sign in. He also contends that they were not sworn in, nor were they required to show proof of age, residency or citizenship. Petitioner further alleges that voters may have voted more than once. Petitioner cites 11 instances of irregularities in signature sheets and five instances of problems with voter affidavits. He asserts that respondent and the successful candidates agree that the process was tainted. Finally, petitioner contends that respondent failed to post a list of absentee voters in violation of Education Law "2018-a(6)(b) and counted the absentee ballots without witnesses. Petitioner requests that I set aside the election results and order a new election. Petitioner’s request for interim relief was denied on July 6, 1998.

Respondent asserts that it properly conducted the election, posted the absentee ballot list, and counted the absentee ballots in public. Respondent also maintains that even if irregularities occurred, petitioner has failed to prove that they affected the outcome of the election.

To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Davis v. Commissioner of Education, 189 Ad2d 1046; Appeal of Chechek, 37 Ed Dept Rep 624; Appeal of Roberts, 33 id. 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 an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Goldman, 35 Ed Dept Rep 126; Appeal of Roberts, supra; Appeal of Como, et al., 28 id. 483). Further, mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Krantz, 37 Ed Dept Rep 257; Appeal of Kushner, 36 id. 261; Appeal of Young, 26 id. 272).

Petitioner has failed to meet his burden of proof. Petitioner received 89 fewer votes than respondent Schultz (1409 to 1498). However, petitioner questions only 16 votes: 11 alleged irregularities in signature sheets and five alleged improper affidavits. Respondent submits the sign-in sheets of these 11 individuals, on which some lines lack a full name or address on the sign-in sheet. In addition, of the five affidavits, an election inspector did not sign three. To warrant setting aside an election, petitioner must establish that the improprieties are substantial and not merely technical in nature (Appeal of Morris, et al., 37 Ed Dept Rep 590; Appeal of Taylor, 31 id. 46). The fact that some election inspectors failed to date or initial some affidavits, or that the sign-in sheets may contain some inadvertent omissions, is a technicality (Appeal of Demos, 34 Ed Dept Rep 54). There is no evidence that these technical failures affected the outcome of the election, and, therefore, they are insufficient reasons to overturn the election. Moreover, even if all 16 votes were discounted, petitioner would still have 73 fewer votes than the next highest candidate.

Furthermore, to the extent petitioner challenges the votes of these 16 individuals, he was required to challenge alleged unqualified voters prior to or at the time such voters presented 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 or her to vote without challenge, cannot object to the proceedings of the meeting because such unqualified person participated (Appeal of Fraser-McBride, et al., 36 Ed Dept Rep 488; Appeal of Horton, 35 id. 168). There is no evidence that petitioner made a timely challenge to the voters’ qualifications.

With regard to absentee ballots, petitioner contends that respondent violated Education Law "2018-a(6)(b) by failing to post a list of absentee ballots in a "conspicuous place or places during the election," so that any qualified voter could challenge the acceptance of an absentee voter’s ballot. Petitioner does not assert that any alleged failure to post the list affected the outcome of the election. Moreover, respondent asserts that it did post the list of absentee ballots on top of each desk used during the election in full and open view of all voters. Respondent states that since there were six desks in use, there were six lists available for inspection, yet no on asked to view the list. Accordingly, it appears that respondent complied with "2018-a(6)(b).

Petitioner also contends that respondent counted the absentee ballots without witnesses in a closed location. Section 2018-a(11) provides that while election inspectors are examining absentee ballots, "any qualified voter present in the polling place may object to the voting of the ballot contained in any envelope" upon certain specified grounds. This necessitates the opening of absentee ballots in public. Respondent asserts that while there was no public announcement as to the counting of the absentee ballots, it counted the ballots in full and open view of all voters in the same room in which the voting took place. Petitioner has failed to submit any evidence to meet his burden of proving that respondent did not comply with "2018-a(11).

Finally, although petitioner does not raise this issue and it does not affect the outcome of the election, respondent admits that it opened and counted absentee ballots before the polls closed. This practice violates "2018-a(10), which requires that absentee ballots be opened after the closing of the polls. Respondent is reminded to comply with all the provisions of Education Law "2018-a concerning absentee ballots and to carefully supervise its registration and voting procedures.