Decision No. 13,269

(September 30, 1994)

Patrick Kevin Brosnahan, Jr., Esq., attorney for respondent Lipman

SHELDON, Acting Commissioner.--In separate appeals, petitioner Bova, an unsuccessful candidate for election to respondent board of education, and petitioners LaCorte and Koehler, residents of the West Islip Union Free School District, seek orders invalidating a school district election. Because the appeals involve the same issues, they are consolidated for decision. The appeals must be dismissed.

On May 18, 1994, respondent Board of Education of the West Islip Union Free School District (the "district") held its annual election. Three candidates sought one position on the board and two candidates sought another position. The election results were:

Susan Lipman - 2,622 votes

Ronald P. Bova - 1,917 votes

Jason C. Rauch - 199 votes

Dominick J. Siani, CPA - 2,526 votes

Thomas J. McAteer, Jr. - 2,178 votes

Susan Lipman and Dominick Siani were declared winners. These appeals followed.

Petitioners challenge the election results because of the placement of candidate Bova's name on the ballot. They claim the absence of a space or blank box on the ballot between the incumbent box and Bova's name resulted in voters accidentally voting for incumbent Susan Lipman, when they intended to vote for Ronald Bova. Respondents contend that petitioners have not sustained their burden of proof that any confusion altered the outcome of the election.

There is a presumption of regularity in the conduct of a school district election. The Commissioner of Education will not set aside the results of an election in the absence of evidence that the alleged irregularities affected the outcome of the election (Matter of Boyes v. Allen et al., 32 AD2d 990, aff'd. 26 NY2d 709; Appeal of Roberts, 33 Ed Dept Rep 601), are so pervasive that they vitiate the electoral process (Appeal of Roberts, supra; Appeal 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 (Appeal 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 a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483). To warrant setting aside an election, petitioner must establish that the improprieties are substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). Petitioner additionally has the burden of establishing the facts upon which he seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163), and that the will of the voters has not been carried out (Appeal of Kohilakis, 33 Ed Dept Rep 513; Appeal of Gross, 26 id. 121). Upon the record before me, I find petitioners have failed to meet that burden.

Petitioners primarily contend that, as a result of the format of the ballot during the May 18, 1994 election, district voters were confused about which lever to pull to cast a vote for petitioner Bova. Consequently, petitioner Bova lost the election by 705 votes. Petitioners submitted a total of 376 affidavits from voters in support of their allegations of voter confusion. Of these affidavits, more than half the voters either do not recall for whom they voted or state that they ultimately voted for the candidate of their choosing. Only 135 of the affidavits allege that their confusion resulted in a vote for the wrong candidate. Even if all 135 voters had cast their ballots for petitioner Bova, it would not have changed the outcome of the election. Based on the large margin of victory, I find no basis upon which to sustain petitioners' contention.

I have reviewed petitioners' remaining contentions and find them without merit.

THE APPEALS ARE DISMISSED.

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