Decision No. 18,118
Appeal of TUERE MORTON and KARLIEF BOYD from action of the Board of Education of the Bay Shore Union Free School District, Nadine Summers as election chairperson and district clerk, Louis R. Bettinelli, and Guy Leggio regarding an election.
Decision No. 18,118
(May 2, 2022)
Raymond G. Keenan, Esq., attorney for petitioners
Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel
ROSA., Commissioner.--Petitioners appeal the actions of the Board of Education of the Bay Shore Union Free School District (“respondent” or “the board”) and Nadine Summers as election chairperson and district clerk regarding the district’s 2020 budget vote and election. Petitioners also join Louis R. Bettinelli and Guy Leggio, incumbent board members who ran for reelection in 2020, as necessary parties. The appeal must be dismissed.
In June 2020, respondent held its annual budget vote and election to fill two board seats. Due to the COVID-19 pandemic and Executive Order 202.26, the election was conducted by absentee ballot (see Appeal of Puskuldjian and Romano, 61 Ed Dept Rep, Decision No. 18,048). Four candidates were listed on the ballot for the two seats: Louis Bettinelli, an incumbent; Guy Leggio, an incumbent; petitioner Tuere Morton; and petitioner Karlief Boyd. In tallying the vote counts, respondent rejected 547 absentee ballots. Incumbents Bettinelli and Leggio won the two board seats based upon the following vote count: Leggio 2,476 votes; Bettinelli 2,090 votes; Morton 1,133 votes; and Boyd 1,058 votes. This appeal ensued. Petitioners’ request for interim relief was denied on July 8, 2020.
Petitioners argue that the results of the budget vote and board election should be annulled because the election was marked by numerous procedural irregularities.
Respondent contends that the irregularities alleged by petitioners are not based in fact, or, in the alternative, had no impact upon the outcome of the election.
To invalidate the results of a school district election, the petitioner must either: (1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or (2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (see Matter of Boyes v Allen, 32 AD2d 990, 991 [3d Dept 1969], affd 26 NY2d 709 ; Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Levine, 24 id. 172, Decision No. 11,356, affd sub nom. Capobianco v Ambach, 112 AD2d 640 [3d Dept 1985]). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an election are so pervasive as to vitiate the fundamental fairness of the election (see Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748). It is well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results (Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947; Appeal of Dodson, et al., 54 id., Decision No. 16,764).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Petitioners argue that the election results should be annulled based on several alleged irregularities. First, petitioners argue that the ballot improperly contained four spaces for write-in candidates and that the layout made it appear as though a voter needed to mark a box and write the name of the candidate for whom a vote was cast. This, petitioners argue, led to ballots being voided due to “over votes.” Respondent contends that the district provided clear instructions to voters. While it concedes that the presence of four write-in lines as opposed to two write-in lines was a “technical irregularity,” it argues that this had “absolutely no impact on the confirmed results” of the election. Respondent further asserts that petitioners have not proven that the outcome of the election was affected by the ballots or instructions.
Education Law § 2032 (6) provides that “irregular or defective” ballots will not invalidate election results “provided the intent of the voter may be ascertained from the use of such ... ballots[,] and such use was not fraudulent and did not substantially affect the result of the meeting or election” (see Matter of Embree, Jr., et al., 19 Ed Dept Rep 286, Decision No. 10,134; Matter of Farrell, 10 id. 30, Decision No. 8,173). Education Law § 2034 (4) further indicates that a vote shall not be counted “if [a] voter marks more than one name in a group for a separate specific office or if for any reason it is impossible to determine the voter’s choice of candidate....”
In her affidavit, Ms. Summers explains that “various” ballots were voided if a voter placed a mark in the voting square for a candidate and wrote in the name for the same candidate. She states that ballots cast for all four candidates were invalidated for such “over votes.” In her recollection, a greater number of votes for incumbents Bettinelli and Leggio were invalidated on this basis. Respondent argues that such invalidation of ballots for “over votes” was proper in light of Education Law § 2032 (2) (e), which authorizes only non-nominated candidates to be written in as candidates.
Respondent’s invalidation of votes based on “over votes” was improper insofar as voters’ choice of candidates was readily ascertainable. The Commissioner has so held under materially identical circumstances (see Appeal of Board of Educ. of the Hilton Cent. Sch. Dist., 56 Ed Dept Rep, Decision No. 17,091; Appeal of Reed, 55 id., Decision No. 16,871; Matter of Nield, 56 St Dept Rep 134, Decision No. 3,686). Nevertheless, petitioners have not submitted any proof that the use of the ballots was fraudulent or substantially affected the election results. Indeed, even if every voided absentee ballot were cast in favor of petitioners Morton and Boyd, they would not have won the election, having lost by 957 and 1032 votes, respectively.
Additionally, petitioners argue that assistant superintendent Maureen Virsinger and public relations coordinator Krystyna Baumgartner participated in the canvassing of votes even though they were not appointed as election officials. Respondent contends that election inspectors, sworn in and supervised by Ms. Summers, conducted the canvassing of absentee ballots.
In a union free school district, “[t]he board of education shall ... appoint assistant clerks and election inspectors as required,” which includes “[a]t least two election inspectors ... for each ballot box or voting machine” (Education Law § 2025  [b]). Respondent admits that the district clerk, not the board, swore in the election inspectors. Respondent further admits that Ms. Baumgartner and Ms. Virsinger assisted in canvassing the ballots, although they were not sworn in as election inspectors. While this did not comply with the Education Law, the Commissioner has declined to order a new election under similar circumstances (see e.g. Appeal of Uciechowski, 32 Ed Dept Rep 511, Decision No. 12,903 [no basis for overturning election where, among other things, board failed to appoint appropriate number of election inspectors and some of its members provided “temporary assistance” to election officials during the election]).
In sum, petitioners have failed to prove, or sufficiently allege, that any irregularities affected the outcome of the election. Additionally, I do not find that the above errors were so pervasive that they vitiated the electoral process or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law. Respondent is nevertheless admonished to more carefully follow the election procedures in the Education Law.
I have considered petitioners’ remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 While Ms. Summers is named as a separate respondent, references to “respondent” herein are solely to the board of education.
 Petitioners also argue that a missing or inaccurate date is an improper ground for voiding a ballot. I need not address this contention because respondents submit evidence that no ballots were invalidated on this basis.
 Although respondents present proof that Ms. Virsinger was appointed to serve as deputy district clerk, they do not explain how this appointment fulfilled the requirements of Education Law § 2025.