Appeal of ROSE APGAR from action of the Board of Education of the Horseheads Central School District and Cathy Plate, Michael Joseph, Mark Brinthaupt, and Jane E. Morello regarding the conduct of a school board election.

 

(January 16, 2004)

 

Sayles and Evans, attorneys for respondents, James F. Young, Esq., of counsel

 

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for reelection to the Board of Education of the Horseheads Central School District ("the board"), challenges the results of the June 3, 2003 school board election.  The appeal must be dismissed.

Initially, four candidates were running for three open seats on the board.  The district held a drawing to determine the order of candidates on the ballot.  The resulting order was Cathy Plate, Michael Joseph, Mark Brinthaupt, and petitioner Apgar.

Subsequently, the State Legislature delayed the uniform election day from May 20, 2003 to June 3, 2003.  This extended the deadline by which candidates could file nominating petitions.  During this extended period, a fifth candidate, respondent Jane E. Morello, filed a nominating petition.  As a result, on May 5, 2003, the district held a second drawing to determine the order of candidates on the ballot.  The second drawing put petitioner in the first position on the ballot. The new order was Rose Apgar, Michael Joseph, Jane E. Morello, Cathy Plate, and Mark Brinthaupt.  The district submitted this order of candidates to its printer so that the ballots could be printed.   

Instead of following the new order, the district's printer printed the ballots with the initial order and added respondent Morello"s name last.  Therefore, the ballots used in the election had the following order: Cathy Plate, Michael Joseph, Mark Brinthaupt, Rose Apgar, and Jane E. Morello. 

The district became aware of the mistake in the order of candidates at 8:00 a.m. on election day. District officials responded by posting a notice in each polling booth informing voters that the order of the candidates differed from that previously published in the district's newsletter. The election was held and the winning candidates were: Cathy Plate with 1,547 votes, Mark Brinthaupt with 1,777 votes, and Jane Morello with 1,704 votes.  Petitioner received 1,535 votes and the other unsuccessful candidate, Michael Joseph, received 1,421 votes.  Thus, petitioner lost by 12 votes to Cathy Plate, who was in the first position on the ballot.  

Petitioner contends that the change in the order of candidates on the ballot confused voters, causing her to lose the election.  She requests reinstatement to the board.  Respondents contend that the petition should be dismissed in its entirety because petitioner failed to show that the change in the candidates' order on the ballot affected the outcome of the election.  Petitioner's request for interim relief was denied on June 30, 2003. 

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 240, Decision No. 14,676), were so pervasive that they vitiated the electoral process (Appeal of Laurie, 42 Ed Dept Rep ___, Decision No. 14,867; Appeal of Meyer and Mittelstaedt, 40 id. 34, Decision No. 14,413), 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 she 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 demonstrating a clear legal right to the relief requested (Appeal of Boiko, supra; Appeal of Taylor, supra).  Petitioner has not met her burden of proof in this appeal.

Respondents maintain that voters identify candidates by their names, not their positions on the ballot, and that the candidates' names were clearly listed on the ballot.  Respondents also state that district officials advised voters of the change in the order of candidates on the ballot as soon as they discovered the printing mistake by posting signs in the voting booths on election day.

Petitioner contends that the mistake in the order of candidates on the ballot caused her to lose the election because of voter confusion. She submits a district newsletter, disseminated to district residents before the election, which listed the order of candidates on the ballot.  Petitioner was listed first.  She states that during the campaign she encouraged voters to pull the first lever on the voting machine.  As a result, petitioner maintains that many district voters who intended to vote for her instead voted in error for Cathy Plate who was listed first on the ballot.  Petitioner names one such voter.

I do not find that petitioner has adequately substantiated her claim that the change in the order of candidates on the ballot affected the outcome of the election.  Petitioner has failed to submit a single affidavit from a district voter stating that the voter was confused because of the change in the order of candidates on the ballot and intended to vote for petitioner but instead voted for candidate Plate in error.  Petitioner similarly fails to show that the irregularity in question was so pervasive that it vitiated the electoral process, or demonstrated informality to the point of laxity.  The appeal therefore must be dismissed.        

 

THE APPEAL IS DISMISSED.

END OF FILE

---