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Decision No. 14,867

Appeal of MARGARET S. LAURIE from action of the Board of Education of the Lewiston-Porter Central School District, board members Frank Collins, James Leighton, Nils Olsen, Edward Lilly, Louis Palmeri, Gretchen Baxter, William Spry and John Burmeister, and Superintendent Walter Polka regarding the conduct of an election.


F. Warren Kahn, Esq., attorney for respondents 

MILLS, Commissioner.--Petitioner, one of two unsuccessful candidates for reelection to the Board of Education of the Lewiston-Porter Central School District ("the board"), challenges the results of the board election held on May 21, 2002.  The appeal must be dismissed.

On May 21, 2002, district voters elected three board members and passed the budget and a referendum.  Petitioner alleges that numerous irregularities in the conduct of the election led to fraud and manipulation insuring her defeat and that of the other incumbent who had voted against increased teacher benefits.  She contends that election results were obviously manipulated because, although she and the other incumbent were defeated, the voters approved the budget and a cost control referendum that the two incumbents had supported. 

Petitioner claims, among other things, that on election day: the district clerk in charge of the election left the polling place unsupervised for over ninety minutes; voting was uncontrolled and unregulated; voting machines were unsupervised; an additional voting machine was improperly placed in use during the election; the inspectors failed to check the machine tallies on an hourly basis; and the voting machines were improperly cleared immediately after the election.  She also claims that: teachers exerted undue influence on students to get their parents to vote; no list of absentee ballot recipients was posted; the voting procedure was arbitrarily changed without prior board discussion or permission; sixteen sign-in sheets representing 320 potential voters are missing; two sign-in sheets have the same page number; eighty-one sign-in entries are deficient; and the total votes tallied on the machines exceeded the number of voters who signed in.  Petitioner requests that I overturn the election, order a new election to fill the three seats on the board, and investigate the election process.  Respondents defend the integrity of the election results and deny that any irregularities or fraud occurred.  Petitioner"s request for interim relief was denied on July 3, 2002.

The appeal must be dismissed.  To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but 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; Appeal of Huber, et al., 41 Ed Dept Rep ____, Decision No. 14,676), were so pervasive that they vitiated the electoral process (Appeal of Meyer and Mittelstaedt, 40 id. 34, Decision No. 14,413; Appeal of Roberts, 33 id. 601, Decision No. 13,162), or demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Huber, supra; Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, aff'd sub nom, Capobianco v. Ambach and Bd. of Ed., Glen Cove City School Dist., 112 AD2d 640).  Implicit in these decisions is a 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 Meyer and Mittelstaedt, supra; Appeal of Goldman, 35 Ed Dept Rep 126, Decision No. 13,487).  Furthermore, in an appeal to the Commissioner, petitioner bears the burden of establishing all of the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Boiko, 40 Ed Dept Rep 409, Decision No. 14,513; Appeal of Taylor, 39 id. 368, Decision No. 14,261; Appeal of Trombley, 39 id. 115, Decision No. 14,189) and to demonstrate a clear legal right to the relief requested (Appeal of Boiko, supra; Appeal of Taylor, supra). I find that petitioner has failed to meet her burden of proof in this appeal.  

Petitioner"s claim that respondents failed to properly post a list of absentee voters in violation of Education Law "2018-a(6)(b) is without merit.  That section of the law has been repealed.  As of January 1, 2001, there is no longer a requirement that a list of absentee voters be posted in a conspicuous place during the election; the list must be available for inspection in the district clerk"s office until the day of the election. 

Petitioner also objects to the sign-in and voting procedures.  The parties agree that when the polls opened at 11:00 a.m., there were three sign-in tables in use with three voting machines.  After signing in, each voter could proceed directly from a table to a corresponding voting machine.  They also agree that sometime between 11:30 a.m. and 1:30 p.m., the sign-in tables and voting machines were moved and a fourth voting machine was added. 

Petitioner claims that through these changes, the district clerk arbitrarily altered the voting procedures pre-approved by the board.  She also contends that when the fourth machine was added, the direct flow of voters from a sign-in table to a specific machine was interrupted, allowing voters to roam the gymnasium and choose which voting machine to use.  Petitioner contends that this lack of supervision created chaos, an opportunity for fraud and the possibility that some voters voted more than once.

Respondents admit that at some point after the polls opened, one of the three voting machines became jammed and a standby machine was brought out.  Respondents state that after the jammed machine was fixed, the district clerk decided to keep all four machines in operation because of the large voter turnout.  The large turnout also prompted the clerk to move the sign-in tables and voting machines back ten to fifteen feet to create more room.   The Education Law does not require that each voter proceed directly from a sign-in table to a specific voting machine under direct supervision.  Although petitioner provides several affidavits attesting to confusion at the polling place, there is nothing inherently improper about respondents" procedure. 

Petitioner initially contended in the petition that the fourth machine was never inspected.  In her reply she concedes that all four machines were inspected prior to the commencement of voting at 11:00 a.m.  However, she contends in the reply that "respondents offer no proof that the fourth machine, which had been removed from the voting area for over two hours, had not been tampered with."  Contrary to petitioner"s contention, she has the burden of proof in an appeal to the Commissioner, and petitioner provides no evidence of tampering.

Respondents concede that the tally on the voting machines exceeds by six the number of individuals who actually signed in.  Of the five candidates, the top three received 2,509, 2,163 and 2,118 votes respectively.  The fourth candidate received 2,046 votes, 72 fewer votes than the third highest candidate.  With 1,989 votes, petitioner received the fewest votes, 129 votes less than the third highest candidate.  A difference of six votes clearly did not affect the outcome of the election where the fourth and fifth candidates lost by 72 and 129 votes, respectively.

Moreover, petitioner has failed to provide evidence that the alleged confusion at the polling place led to actual fraud or multiple voting.  One affiant attests that he saw six people vote without signing in.  These six votes may account for the discrepancy between the machine tally and the sign-in sheets.  In any event, these six votes did not affect the outcome of the election.  Other affiants state that they overheard "two different groups say that they had voted twice" and saw "High School students signing in to vote and some were in 11th grade and under age 18".  However, in neither case is there direct proof of double voting, underage voting or fraud.  In addition, respondents" exhibits include three machine tally sheets signed and certified by different election inspectors.  From my review of the tally sheets it appears that the inspectors for Booths 1 and 3 apparently misrecorded or transposed numbers in recording the "open" and "end" counts on their machines.  Other than those minor errors, all three tally sheets agree.  Mere speculation as to the possible existence of irregularities is an insufficient basis to annul election results (Appeal of Brannon, 42 Ed Dept Rep ___, Decision No. 14,830; Appeal of Maliha, 41 id. ____, Decision No. 14,716; Appeal of Krantz, 37 id. 257, Decision No. 13,853).  

Petitioner also asserts that there are two sign-in sheets numbered "183."  My review of the allegedly duplicate sign-in sheets indicates that one is numbered "183," whereas the other appears to be numbered "153."  Even if this were not the case, petitioner has failed to demonstrate how allegedly misnumbered sign-in sheets affected the election.  She also alleges that sixteen blank sign-in sheets, representing 320 potential voters, are missing.  She contends that those 320 votes were entered on the fourth machine when it was out of the voting area.  Petitioner offers no proof of a 320-vote discrepancy.  Additionally, the district clerk avers that he possesses fourteen of the sixteen missing sheets and two were inadvertently destroyed.  Petitioner presents no evidence to contradict the district clerk"s statements.  Accordingly, petitioner has failed to meet her burden of demonstrating that blank sign-in sheets may have affected the outcome of the election.

Petitioner also asserts that eighty-one sign-in entries are deficient.  However, respondents submit an affidavit from one of the winning candidates (R. Nils Olsen, Jr.) who avers that in nearly all instances the purported deficiencies were those in which either a husband or wife did not rewrite his or her address under the spouse"s.  Petitioner denies Mr. Olsen"s explanation, but presents neither the actual sign-in sheets nor any other evidence demonstrating any deficiencies or how any alleged deficiencies affected the election outcome.  Accordingly, petitioner fails to meet her burden of proof on this issue as well.

I have considered petitioner"s remaining contentions and find them to be without merit.  Petitioner has failed to establish that any irregularities affected the outcome of the election, were so pervasive as to vitiate the electoral process, or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.  In the absence of such proof, the election will not be set aside and the appeal must be dismissed (Appeal of Brannon, supra).

To the extent petitioner requests an investigation of the matters set forth in the petition, I note that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Brannon, supra;Appeal of Allen, 39 Ed Dept Rep 528, Decision No. 14,300; Appeal of Van Zile and Crowell, 37 id. 213, Decision No. 13,846).