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Decision No. 14,304

Appeal of NINA DIAMOND from action of the Board of Education of the Lawrence Union Free School District and Dorene Granet relating to a school district election.

Decision No. 14,304

(February 11, 2000)

Minerva and D'Agostino, PC, attorneys for respondents, Albert A. D'Agostino, Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Lawrence Union Free School District, challenges the results of a school board election held on May 18, 1999. The appeal must be dismissed.

On May 18, 1999, respondent board held an election to fill several seats. The results certified by the board and the Nassau County Board of Elections gave Dorene Granet 1,778 votes and petitioner, 1,771 votes. Petitioner makes a number of claims of irregularities in the conduct of the election, which she has broadly grouped into four categories: registration and voting irregularities, specifically with respect to eight named individuals who either were not allowed to vote, or were allowed to vote by affidavit but whose votes were not counted; a variance in the number of voters' names on the poll lists compared to the voting machine counters; a claim that 98 persons voted illegally; and a claim that the board attempted to disenfranchise voters, including two named individuals, in a variety of ways. Petitioner asks that the results of the vote be annulled, and that I order a new election. Petitioner's request for interim relief was denied on July 2, 1999.

Respondents generally deny the allegations of wrongdoing in the petition, provide a narrative account of the manner in which the election was allegedly conducted, and defend the integrity of the election results.

The appeal must be dismissed. To overturn an election, petitioner must prove improper conduct on the part of respondent, such as a violation of the Education Law or Commissioner’s regulations (Appeal of Como and Billingham, 39 Ed Dept Rep 9, Decision No. 14,156; Appeal of Ponella, 38 id. 610, Decision No. 14,103; Appeal of Adams, 38 id. 549, Decision No. 14,091). Petitioner must also establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, aff’d, 26 NY2d 709; Davis v. Commissioner of Education, 189 AD2d 1046; Appeal of Adams, supra), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162; Matter of Gilbert, 20 id. 174, Decision No. 10,366), 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, Decision No. 11,356, aff’d sub nom, Capobianco 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 Ponella, supra; Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483, Decision No. 12,177). Petitioner has the burden of establishing all the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Adams, supra; Appeal of Pickreign, 28 Ed Dept Rep 163, Decision No. 12,067).

I will first discuss the eight named individuals that petitioner claims were wrongly deprived of the opportunity to vote for her. Three of those individuals were high school students who apparently believed that they were registered with the Nassau County Board of Elections as a result of a voter registration drive initiated by some of the high school's elected leaders. It appears that a number of high school students filled out registration materials some months before the election, but that those materials were never forwarded to the board of elections. As a result, two of the students were told that they were not registered either with the school district or the board of elections, and left the polling place without voting, and apparently without requesting an affidavit ballot pursuant to Education Law "2019-a(1)(b); one student voted by affidavit ballot but it appears that his vote was not counted because he was not in fact registered. While I find it unfortunate that the registration drive failed these particular students, I can only conclude that they were never in fact registered with the Nassau County Board of Elections and, therefore, could not legally vote in the election.

Petitioners submit the affidavits of four adult residents who were also found not to be registered. Of those four, apparently two did not request an affidavit ballot, while two did make such requests and submitted affidavit ballots, which apparently were not counted. Of those who voted by affidavit ballots, one voter claimed to have changed her address with the New York State Department of Motor Vehicles on March 4, 1999, and relied on Vehicle and Traffic Law "505(6) to change her address with the Nassau County Board of Elections. However, that provision only requires that the Department of Motor Vehicles, "where feasible," deliver such changes of address to the State Board of Elections, at least semi-annually. With respect to the other voter, he claims to have registered with the Nassau County Board of Elections within three years prior to the election, but no record of his registration was found, and his vote was not counted. Again, I have no basis to conclude that any of these voters was properly registered. In addition, petitioner has not claimed that she exercised her right under Education Law "2019-a(3)(c) "to object to the refusal to cast or canvass any ballot on the grounds that the voter is a properly qualified voter" at the time the affidavit votes were considered.

With respect to the eighth voter, it appears that he may in fact have been properly registered and improperly turned away. However, that voter has not submitted an affidavit, and I cannot accept at face value the hearsay affidavit submitted on his behalf.

With respect to petitioner's claim of a substantial difference between the number of voters recorded on the poll listings and the number of voters recorded on the voting machines, I note that the poll lists contain 3,606 names, while the voting machines tallied 3,622 voters, a difference of 16, or a difference of less than one-half of one percent. Respondents concede that the poll lists were not completely accurate. However, the record contains no evidence that the outcome of the election was affected by respondent board's failure to maintain a completely accurate poll list. Consequently, the board's technical failure to complete its poll list is not a sufficient reason to invalidate the results of the election (Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162; Appeal of Richter, 17 id. 70, Decision No. 9,498).

Petitioner's claim that 98 persons voted illegally may be broken into two separate categories: first, she claims that 22 voters were allowed to vote at the wrong polling places, and second, that 76 other voters, who did vote at the correct polling places, were allowed to vote despite technical deficiencies in their registration materials.

With respect to those voters who voted at the wrong polling place, it is clear that Education Law "2015(3) allows a "pre-challenge" to a voter's qualifications prior to the election. Any person whose qualifications have been challenged before the election, who then presents himself to vote, must be challenged by the chairman of the meeting as required by Education Law "2019. If a person wishes to challenge the qualifications of a voter but has not taken advantage of "2015(3), he may still do so when the voter comes to the polls pursuant to "2019. However, in a school district with multiple election districts, a person's legal right to challenge may be compromised if voters are allowed to go to an incorrect election district to vote. In this case, however, petitioner has not alleged that any of these 22 voters was not qualified, nor does she allege that she either "pre-challenged" any of them, or attempted unsuccessfully to have her poll watchers challenge them at their correct polling places. She does, however, claim that one of these 22 persons voted in two different places. While I am concerned that some voters were apparently allowed to vote in the wrong places, it does not appear that any such voter was unqualified, and it does not appear that any was challenged on that basis. As a result, I do not find a reason to set aside the election.

With respect to the 76 voters who voted in the correct places but had discrepancies in their registration materials, I again find no sufficient ground to overturn the election. The technicalities pointed out by petitioner are for the most part incorrect dates, failures of inspectors to initial cards, and other relatively minor matters. Again, there is no indication in the record that petitioner made any challenges pursuant to either Education Law "2015(3) before the election or "2019 at the time of the election, nor is there any claim that these voters were not qualified.

Finally, petitioner claims that respondent board attempted to disenfranchise district voters. Petitioner complains of anonymous threats to employees of the school district, the appointment of her opponent, Ms. Granet, only a week prior to the date when nominating petitions became available, and improper electioneering. However, none of these allegations is supported by facts.

Petitioner particularly alleges that respondent board interfered with the district clerk's efforts to register students at the high school prior to the election. However, respondent board's attorney points out that the notice of annual meeting indicated specific dates, times, and places for the registration of voters under Education Law "2014(4) and argues that the proposed registration of students at the high school was inconsistent with the statutory process for the personal registration of district voters described in the Education Law. (It should be noted that this attempt to register students with the school district for the purpose of district elections pursuant to the Education Law is not the same voter registration initiative mentioned above, which attempted to register students with the Nassau County Board of Elections for all elections pursuant to the Election Law.) Based upon counsel's affidavit, it appears that he was very concerned that the district clerk was without legal authority to conduct the above described registration drive at the high school without amending the notice of annual meeting, which was ultimately done.

In addition, petitioner claims that two people called the district office on the day of the election and were told that they were not registered. However, respondents' counsel points out that the district office was not a polling place, and that the general election registration books from the Nassau County Board of Elections were at the polling places, not at the district office. In any event, one of the two voters in question actually did vote prior to the close of the polls.

While I am constrained to dismiss the petition, I am concerned that district officials have apparently allowed at least some voters to vote at the wrong polling places for some time. In its defense, respondent board offers a copy of its instructions to all poll workers for the election. These instructions indicate in pertinent part:

The voter must vote in the school indicated on the list. That is where their voting card is. Please do not allow a voter to vote in a school where they are not registered.

Respondent board claims that there is some confusion among the voters because redistricting over the years has changed polling places. It uses Sealy Drive as an example. At one time, Sealy Drive was within the "Number 3 School" election district. When School 3 was sold, Sealy Drive residents began to vote at the Middle School for school district elections, and at the Number 1 School for general elections. However, as petitioner points out, since the Number 3 School was sold approximately 20 years ago, any such confusion should have ended long ago, and there is no basis for district officials to continue to permit voters to vote in the wrong polling places. As I indicated in the discussion above, the ability of a voter to go to the wrong polling place may seriously frustrate the legal right of another voter to challenge his right to vote. Respondent board should, therefore, direct district officials to remove any duplicate registrations from the district's records, and insist that voters go to their proper polling place to vote.

I have considered the parties' remaining claims and arguments and find them without merit.