Decision No. 12,892

Elbert Hargesheimer III, Esq., attorney for petitioner

Norton, Radin, Hoover and Freedman, Esqs., attorneys for respondent, David A. Hoover, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks to invalidate a vote held on a proposition at the annual district meeting of the Hamburg Central School District on June 10, 1992. The appeal must be dismissed.

At respondent's annual district meeting, voters were asked to vote on the district budget, candidates for the board of education, and several propositions. Proposition No. 4, which is the only point at issue in this appeal, reads: "Shall the board of education be authorized to expend the sum in the amount of $106,771 to maintain the driver education program and to levy the necessary tax?" According to the certificate of the chief election inspector, at the close of voting there were 1,185 votes against the proposition and 1,184 votes in favor.

Petitioner, who favored the proposition, makes several claims of irregularities in the voting, and requests that I order a new vote. Petitioner claims that one voter who would have voted for the proposition, Kathleen Vitale, was denied the right to vote because she allegedly arrived after the polls closed at 9 p.m., while a board member who arrived at about the same time was permitted to vote. Petitioner also claims that another person who voted "no," Tina Cramer, was not legally entitled to vote because she did not live within the district boundaries. Finally, petitioner claims that two other persons who were not district residents, James Owen and Mark Holmes, voted in the election. She has not alleged how, or indeed whether, they voted on Proposition No. 4.

Respondent claims that the election was in all respects conducted properly, and that Kathleen Vitale was properly excluded from voting. Respondent further claims that because it did not use a system of voter registration, any challenges to votes must be timely made pursuant to Education Law '2019, and that the three voters in question cannot be challenged for the first time in this appeal. Respondent further claims that the proposition was only an advisory referendum, and that even if irregularites occurred, there is no proof that the result of the election would have been changed.

I find no evidence that Kathleen Vitale was improperly excluded from voting. Her affidavit indicates that she would have voted for the proposition, but arrived in the parking lot at 8:59 p.m. Her affidavit claims that she arrived at the appropriate voting table in the school gymnasium at 9:01 or 9:02 p.m. and was told she could not vote. She does not allege that she entered the gymnasium prior to 9:00 p.m., when the polls closed. Although Education Law '2033 requires that all qualified voters who are in the polling place at or before the time the polls close must be allowed to vote, Ms. Vitale's affidavit fails to establish that she was actually in the polling place at the time the polls closed, and I find she was properly excluded (Matter of Ward, 21 Ed Dept Rep 394). By contrast, respondent's answer, sworn to by its district clerk, establishes clearly that the board member who petitioner suggests was allowed to vote late in fact voted several minutes before 9:00 p.m.

I also find that no timely challenge was made to Tina Cramer, who voted against the proposition, and who states in an affidavit that she was not a resident of the district; nor was any challenge made to James Owen and Mark Holmes, who allegedly were not residents. Where there is no system of voter registration in place, an unqualified voter must be challenged pursuant to Education Law '2019. There is no claim that that was done in this case. Where no timely challenge is made, the voter's qualifications may not later be challenged on appeal (Appeal of Gibeau, 30 Ed Dept Rep 279; Appeal of Tortorello and Bartnik, 29 id. 306; Matter of Regent, 12 id. 108). It should be noted that, even if Cramer's vote were excluded, the vote would have been tied, and the proposition would nevertheless have been defeated. The votes of Owen and Holmes cannot be excluded, since it is not established that they even voted on Proposition No. 4.

Based upon the foregoing, the appeal must be dismissed. I have examined the other contentions of the parties, including the claim of respondent that the proposition was only an advisory referendum, and in view of this disposition, it is not necessary to address them.

THE APPEAL IS DISMISSED.

END OF FILE

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