Decision No. 14,073

(January 30, 1999)

MILLS, Commissioner.--Petitioners challenge the results of an election held on May 19, 1998 to fill three seats on the Board of Education of the New Lebanon Central School District. The appeal must be dismissed.

Petitioners are unsuccessful write-in candidates in the election, which resulted in the election of respondents Norreen Opper, Judith Sharp and Jerry Carinci, who received 403, 342 and 274 votes, respectively. Petitioners Linville and Laier received 217 and 252 write-in votes, respectively. Nine other individuals received one write-in vote each, and a tenth individual received twelve write-in votes.

Petitioners contend that certain irregularities occurred with respect to the vote which affected the results of the election. Specifically, petitioners allege that the voting machines used were not in proper condition, in violation of Education Law section 2035, in that multiple votes for one candidate were possible, one of the machines was subject to mechanical failure, and one or both machines may have run out of paper. Petitioners also contend that insufficient, inadequate and incorrect instructions were provided to inform voters of the procedures for voting, particularly with respect to casting write-in votes. Petitioners allege that the instructions caused one of the machines to jam and to fail to record write-in votes that were cast, thereby skewing the outcome of the election toward candidates on the ballot, and caused confusion and delay which had a material impact on the election. Petitioners allege that the election inspectors issued two contradictory sets of official returns of votes cast and that the examination of voting results was not conducted properly in that the inspectors permitted the superintendent of schools to sit with them as the ballots were examined and tallies were reached. Petitioners also allege that the election inspectors were biased against the write-in candidates.

Petitioners request that the results of the election be set aside and declared void; that a new election using paper ballots only be held immediately; that all candidates, including petitioners, be allowed to petition to have their names placed on the ballot for the new election; that new election inspectors be designated for such election; and that the superintendent of schools be directed not to participate in the conduct of the election or the examination of its results.

Respondents deny petitioners' allegations and contend that the petition should be dismissed in that petitioners have failed to: demonstrate any wrongdoing on the part of the named board members, the board of education or the superintendent of schools; state a claim upon which relief may be granted; and properly join the election inspectors and the district clerk as necessary parties. Respondents also request that respondent Frank be removed as a party in this appeal because he was not elected to the board and therefore has no interest in the outcome and is not accused of inappropriate conduct.

I will first address respondent's procedural defenses. A petition must contain a claim showing that petitioner is entitled to relief, a demand for the relief, and must be sufficiently clear to advise respondent of the nature of petitioners' claim and the act(s) complained of (8 NYCRR "275.10; Appeal of Brousseau, 37 Ed Dept Rep 295). Petitioners' claims and the relief requested are summarized above and I find that they are sufficiently stated in the petition so as to enable respondents to adequately address petitioners' claims in their answer and memorandum of law. Accordingly, I decline to dismiss the appeal for failure to state a claim.

Respondents also contend that petitioners have failed to properly join the election inspectors and the district clerk as necessary parties. Any party whose rights would be adversely affected by a determination of an appeal in favor of the petitioners must be joined as a necessary party (Appeal of Schuler, 37 Ed Dept Rep 512). Petitioners make certain allegations with respect to the conduct of the election inspectors and request that new election inspectors be designated. Accordingly, their rights would be adversely affected and therefore those portions of the appeal pertaining to allegedly improper conduct by the inspectors must be dismissed (Appeal of Heller, ___ 38 Ed Dept Rep ___, Decision No. 14048, dated December 15, 1998; Appeal of Deitz, 35 id. 261; Appeal of Strada, 34 id. 629). Petitioners seek no specific relief against the district clerk and therefore the clerk is not a necessary party for purposes of this appeal.

I also find that the petition must be dismissed with respect to respondent Ralph Frank. If an appeal involves the validity of an election, each successful candidate whose right to hold office is disputed must be joined as a respondent (8 NYCRR "275.8[d]; Appeal of Gravink, 37 Ed Dept Rep 393). The record indicates that Mr. Frank did not receive a sufficient number of votes to be elected to a seat on the board of education and therefore his joinder as a respondent is unnecessary.

Petitioners, in a letter dated August 4, 1998, contend that respondents' memorandum of law improperly includes new factual allegations and is in fact an amended answer. A memorandum of law may not be used to belatedly add new assertions which are not part of the pleadings (Appeal of Coombs, 34 Ed Dept Rep 253). Accordingly, while I have reviewed respondents' memorandum of law, I have not considered the portions of it that contain new allegations. In addition, I note that petitioners attempt to address in their letter certain matters raised in respondents' memorandum of law. Since petitioners failed to make proper application pursuant to "276.5 of the Commissioner's Regulations for the service and filing of this letter, I have not considered petitioners' substantive contentions contained therein.

To invalidate the results of a school district election, petitioners must establish not only that an irregularity 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 Santicola, 36 Ed Dept Rep 416), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 id. 601; Matter of Gilbert, 20 id. 174), 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, 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 Goldman, 35 Ed Dept Rep 126; Appeal of Roberts, supra). A school district election is presumed to have been legally conducted unless petitioners establish the contrary by competent evidence (Appeal of Ferro, 25 Ed Dept Rep 175). The burden of proof in an appeal to the Commissioner rests with the petitioner (8 NYCRR "275.10; Appeal of Gravink, supra). I find that petitioners have failed to meet their burden of proof.

Petitioners contend that insufficient, inadequate and incorrect instructions were provided to inform voters of the procedures for voting. Petitioners allege that there were no instructions posted inside the voting booths; that while there was an overhead projection showing propositions and ballot candidates, it did not contain instructions on voting procedures; and that there were a few instructional sheets on a table near the machine, but that the supply ran out in one hour. Petitioners also allege that the instruction sheets that were initially available contained erroneous instructions to close the tab over the write-in slot after writing in a candidate's name. Petitioners allege that following this instruction causes the machine to jam, including the vote recording bar, thereby preventing the recording of votes cast. Petitioners also allege that these instructions were subsequently, and erroneously, changed to delete the direction to close the tab, and that this "prevented" an unknown number of write-in votes, skewing the outcome of the election towards candidates on the ballot.

Respondents deny petitioners' allegations and submit several affidavits of school and election officials to rebut petitioners' contention that insufficient, inadequate and incorrect instructions were provided to voters. The affidavits of the superintendent of schools, the annual meeting chairperson, the district clerk, the chief election inspector and the election inspector for the voting machine used by voters whose last names begin with the letters A through L, state that the instruction sheets were the same as those used without difficulty in prior years, including the 1997 election; that they were always available at each registration and sign-in table; that at least one of the election inspectors stationed at each voting machine had a copy of the instructions so that he or she could answer voter questions, or pass the instructions in to voters if necessary; that at no time during the hours the polls were open did the instruction sheets ever run out; that when voters asked questions regarding write-in procedures, they were given an instruction sheet to review and were told to be sure to ask if they had any questions while in the voting machines; and that voters were given as much time as necessary to cast their votes, even if it caused an occasional back-up. The annual meeting chairperson and the election inspector stationed at the A-L voting machine state in their affidavits that the confusion expressed by some voters was typical and was not any greater than in prior elections with heavy write-in voter turnout. The district clerk states in her affidavit that while voters had questions, the amount and type of questions were not out of the ordinary and did not prevent people from voting. The chief election inspector states that no one who took a write-in instruction sheet from her complained that they were unable to understand the instructions or were unable to complete their write-in voting. The district clerk and the chief election inspector state that in no way did the change in instructions to delete the direction to "close the tab" cause the machine to jam. They also state, together with the election inspector stationed at the A-L voting machine, that at no time prior to the switch to paper ballots at approximately 6:30 p.m. did any voter or election inspector inform them that a voter could not vote for the write-in candidates of their choice and it was only at that time that any problem with the write-in slots was reported. The affidavit of the machine custodian for the A-L voting machine states that he reviewed the write-in instructions sheet and found it to be correct as far as machine operation was concerned; that nothing in the instructions would have caused the machine to jam; and that a write-in vote would register whether or not the voter closed the slot after voting.

Upon the record before me, I find that petitioners have failed to establish that respondent failed to provide proper and sufficient instructions on voting procedures. There is nothing in the Education Law that requires the posting of instructions in voting machines, and it appears from the record that instructions were available at the registration tables and from the election inspectors and officials. Furthermore, petitioners have failed to prove that the change in the instructions caused the machine to jam.

Petitioners contend that the voting machines used were not in proper condition for use in violation of Education Law "2035. An election will not be set aside upon allegations that a defective voting machine was used absent sufficient proof that such machine was in fact defective (Matter of Starowitz, 14 Ed Dept Rep 116). Petitioners allege that none of the write-in slots were labeled and that there was no tape over slots not intended to be used. However, there is no requirement in the Education Law that the slots be labeled in a specific manner or that tape be placed over unused slots. In any event, I find that petitioners have failed to establish that the labeling or lack of tape over the slots affected the outcome of the election. Respondents state that each slot was labeled with a permanent number and the instructions for voting state that write-in votes are to be written in slots #2, #3, #4 or #5. In addition, the affidavits of the annual meeting chairperson and the chief election inspector indicate that virtually all write-in votes were counted, even a vote which was written in an undesignated slot. Furthermore, the annual meeting chairperson states that to the best of her knowledge only one voter tried to write-in names on the outside of two of the write-in slot covers on the A-L voting machine; that it was not clear who this voter was attempting to vote for or whether this person actually voted correctly; and that it was subsequently determined that the extraneous marks were an attempt at illegal electioneering and not an invalid vote. She also states that once on each machine, a voter made marks on other parts of the machine; that they were not discovered in time to determine which voter had done so; and that the marks were erased and not considered when the votes were tallied.

Petitioners contend that it was possible for voters to cast multiple votes for one candidate in that a vote could be cast for a declared candidate on the ballot by switching the lever for that candidate, then a second vote for the same candidate could be written in one of the write-in slots. Petitioners submit an affidavit from one voter who states that a voter told him and the district clerk that she "voted for three balloted candidates and two write-in candidates, five in all". However, the district clerk, the annual meeting chairperson, the chief election inspector, and an election inspector posted at the A-L machine all submit affidavits stating that at no time did any voter or election inspector inform them that a voter could vote for more than three individuals on a voting machine and that no voter ever informed them that he or she was able to vote for five individuals. The instructions specifically provide that a voter may cast a ballot for three school board candidates only; that if a voter wishes to vote for any of the declared candidates, the voter must do so first; that if a voter wishes to write-in one, two or three names, the voter must use only slot #2, #3, #4 or #5; and that slot #2 is to be used to write-in an alternative for declared candidate Norreen Opper, slot #3 an alternative for declared candidate Ralph Frank, slot #4 an alternative for declared candidate Judith Sharp, and slot #5 an alternative for declared candidate Jerry Carinci. However, the official return indicates that one write-in vote was cast for each of the declared candidates Opper, Frank and Carinci, and that two write-in votes were cast for declared candidate Sharp. These write-in votes were included in the official election results for candidates Opper, Frank and Sharp, but not for candidate Carinci. While inclusion of these write-in votes in the results for the declared candidates was contrary to the instructions for write-in candidates, and therefore should not have occurred, such irregularity does not require that the election be set aside, since the number of write-in votes for the declared candidates, when subtracted from each candidate's total, is insufficient to affect the outcome of the election, particularly with respect to candidate Carinci, whose write-in vote was not included in the candidate's total votes as reported in the official election results.

Petitioners offer several affidavits from individuals who experienced difficulty when using the voting machine reserved for voters whose names began with the letters A through L. These difficulties fall into three categories: (1) difficulties in maneuvering the lever used to register the vote and exit the booth; (2) difficulties in opening or closing the write-in tabs; and (3) the apparent failure of the paper roll to advance so that the next write-in vote could be entered. Petitioners also offer the affidavit of someone who stated that three write-in tabs were jammed on the machine reserved for voters whose names began with the letters M through Z, and he therefore could only vote for one write-in candidate.

With respect to the alleged difficulties with the bar used to register the vote and exit the booth, petitioners have failed to establish that this affected the vote. The affidavits submitted by petitioners are speculative in nature and merely indicate that the voter was "afraid" or 'thinks' or 'does not believe' that his or her vote was recorded. Furthermore, petitioners offer an insufficient number of affidavits to establish that the difficulty with the bar affected the outcome of the election. In addition, none of the affidavits of voters submitted by petitioners state that the voter intended to vote for either or both petitioners. Respondents submit affidavits from the chairperson of the annual meeting and an election inspector assigned to the A-L voting machine, which state that the lever on the A-L machine was occasionally balky, but could be maneuvered with some force; that the people experiencing the most difficulty were elderly or frail; and that the vast majority of people who cast write-in votes had no difficulty pulling the lever. The record indicates that officials were available to assist voters having difficulties. The annual meeting chairperson and the election inspector's affidavits indicate that each of them had an occasion to assist an elderly voter having difficulty pulling the lever and that both the public and protective counters on the machine advance properly. In addition, the chairperson states that all votes were registered properly despite the occasional balkiness of the lever as both the public and protective counters matched the poll lists and advanced appropriately until approximately 6:30 p.m. At that time, after a voter reported that there was a name in the write-in slot when he attempted to cast his own write-in vote, the chairperson and the chief election inspector decided to use paper ballots for voters with the last names beginning with the letters A-L for the remainder of the day.

With respect to the alleged difficulties involving the opening and closing of write-in tabs, respondent submits the affidavits of the annual meeting chairperson, the district clerk, the chief election inspector and the election inspector assigned to the A-L voting machine, all of whom state that at no time prior to the switch to paper ballots for the A-L machine did any voter or election inspector inform them that a voter could not vote for the write-in candidates of their choice and that they were not alerted to a problem which prevented a voter from writing in the candidates of his or her choice until a voter indicated there were already names appearing in the write-in slot, as discussed above. Furthermore, the chairperson states in her affidavit that in an effort to alleviate the occasional difficulty with the lever, she had the instruction to "close the tab" deleted from the write-in instructions and that this change in instructions did not prevent any vote from registering as the protective and public counters continued to advance appropriately. The affidavit of the machine custodian for the A-L voting machine states that he tested the voting machine at least ten times prior to the opening of the polls and that nothing in the write-in instructions would have caused the voting machines to jam and that a write-in vote would register whether or not the voter closed the slot after voting. None of the voters submitting affidavits with respect to the difficulty they purportedly had with the tabs state that they requested assistance from any election inspector or other official. It is therefore not conclusively established that any difficulties were the result of a defective machine, since it is equally possible that such difficulties arose because of the failure of individual voters to properly follow instructions. Furthermore, petitioners submit an insufficient number of affidavits from voters who claim to have had difficulties with the tabs to establish that the alleged irregularity had an effect on the outcome of the election. In addition, none of the affidavits of voters submitted by petitioners state that the voter intended to vote for either or both petitioners.

Petitioners also contend that the paper in the voting machine jammed and would not advance properly. It appears from the record that the paper was found to not be advancing properly at approximately 6:30 p.m., at which time the decision was made to switch to paper ballots. It also appears from the affidavits of the annual meeting chairperson and the chief election inspector that virtually all write-in votes were counted, even a vote which was written in an undesignated slot; that no more than three write-in votes were not counted because they were illegible; and that five write-in names which were lumped together at the end of the paper for the A-L voting machine were not counted because it could not be determined that the names were written by more than one voter. Of these five votes, no more than three were for petitioner Laier and the remaining votes were for petitioner Linville. The chairperson further states that all other spacing for the write-in names was appropriate on each roll of paper. Furthermore, the affidavit of the voting machine custodian states that neither voting machine ran out of paper during the election; the paper roll on the A-L machine appeared normal when the machine was opened and was not torn or out of place. Upon the record before me, I find that petitioners have failed to establish that the failure of the voting machine paper to advance affected the outcome of the election.

Finally, petitioners contend that two contradictory sets of official election returns were issued and that the examination of voting results was not conducted properly in that the inspectors permitted the superintendent of schools to sit with them as the ballots were examined. These contentions are without merit. The record establishes that after the election inspectors completed their handwritten tally of returns and signed it, the district clerk retyped the official tally for purposes of the minutes of the annual meeting, and that prior to the board's acceptance of the official returns on May 26, 1998, a typographical error was discovered and corrected in the column listing the total votes of voting machine no. 161544 for candidate Jerry Carinci.

With respect to the superintendent's presence at the canvass of the vote, respondent submits the affidavits of the superintendent, the annual meeting chairman, the district clerk, the chief election inspector, and an election inspector, all of which indicate that the canvass took place in the District gymnasium in full public view; that members of the public, including petitioners, had the opportunity to observe and hear the canvassing and tallying of the vote; and that the superintendent did not offer any opinions or make any decisions as to which write-in votes would be counted, or otherwise actively participate in the canvass. Upon the record before me, I find that petitioners have failed to establish that the superintendent's presence at the canvass was improper, or affected the outcome of the election in any way.

I have examined petitioners' remaining allegations and find them to be without merit.

THE APPEAL IS DISMISSED.

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