Appeal of TED THOMAS from action of the Board of Education of the Jasper-Troupsburg Central School District, Cynthia Cady, as district clerk, Robert Manley and Mark Leach regarding a school district election.

Decision No. 15,748

(May 6, 2008)

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondents, John P. Lynch, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the results of an election held on May 15, 2007 to fill two seats on the Board of Education of the Jasper-Troupsburg Central School District (“the board”).  The appeal must be sustained in part.

Petitioner is an unsuccessful write-in candidate from the May 15, 2007 election which resulted in the election of respondents Manley and Leach to fill two vacancies on the board.  At the May 15, 2007 election, candidates did not run for separate specific offices but, instead, ran “at-large”, pursuant to Education Law §2018(b).  Under this system, the candidates receiving the highest number of votes are elected to fill any vacancies on the board.  The district used voting machines to conduct the election and Manley and Leach received 101 and 100 votes, respectively, while petitioner received 94.  Accordingly, Manley and Leach were declared the winners of the two vacant seats.

Petitioner contends that certain irregularities occurred with respect to the vote which affected the outcome of the election. Specifically, petitioner contends that the voting machines used in the election did not contain two slots for write-in candidates, one for each vacancy on the board, in violation of Education Law §2032.  He claims that, had two write-in slots been provided, he would have garnered enough votes to win the election.  Petitioner requests that the results of the election be set aside and a new election held.

Respondents contend that the election was properly conducted.  They also assert that, even if petitioner is correct regarding the number of write-in slots required, he failed to demonstrate that the alleged irregularity affected the outcome of the election.

To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also that any irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380), were so pervasive that they vitiated the electoral process (Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380; Appeal of Brannon, 42 id. 220, Decision No. 14,830; Appeals of Laskas-Gillespie and Warshaw, 40 id. 568, Decision No. 14,559), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Christe, 40 Ed Dept Rep 412, Decision No. 14,514; Matter of Levine, 24 id. 172, Decision No. 11,356, affdsubnom; Capobianco v. Ambach, 112 AD2d 640). Implicit in these decisions is the recognition that it is a rare case where errors in the conduct of an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380; Appeal of Collins, 39 id. 226, Decision No. 14,223; Appeal of Roberts, 33 id. 601, Decision No. 13,162).

In addition, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

Education Law §2032(2)(e), which governs the ballots for election of school officers, provides, in pertinent part:

One blank space shall be provided under the name of the last candidate for each separate specific office so that voters may vote for candidates who have not been nominated for the offices to be filled at such election...

Education Law §2018(b) provides, in pertinent part:

At any school election..., the electors may adopt a proposition providing that..., vacancies upon the board of education shall not be considered separate specific offices and that the nominating petitions shall not describe any specific vacancy upon the board of education for which the candidate is nominated.

Finally, Education Law §2035 permits boards of education to use voting machines in school district elections and that “[t]he use of such machine[s] shall be deemed a compliance with any provision of law requiring the vote to be by ballot.”

Respondents assert that, where candidates are not nominated for separate specific offices and, instead, run at-large, Education Law §2032(2)(e) is inapplicable and multiple write-in spaces are not required.  Additionally, they contend that Education Law §2032 applies only to paper ballots and not to voting machines.  I disagree.

Where voting machines are used, a district must provide for the casting of write-in ballots on the machines (Appeal of Pickreign, 28 Ed Dept Rep 163, Decision No. 12,067; Matter of Yost, 21 id. 140, Decision No. 10,626). While Education Law §2032 does not specifically reference voting machines or at-large voting to fill board vacancies, the intent of the statute is clear.  Voters are to be afforded the opportunity to select an alternative candidate of their choice for each vacancy to be filled on the board (seeAppeal of Baker, 30 Ed Dept Rep 228, Decision No. 12,443).  Moreover, although the New York State Election Law does not govern the conduct of school district elections (Election Law §1-102; Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380; Appeal of Donnelly, 33 id. 362, Decision No. 13,079), I note that Election Law §7-106, pertaining to write-in votes in general elections, requires “as many blank spaces” under each office or position “for writing in names of persons for whom the voter desires to vote, as there are persons to be nominated or elected.”  Accordingly, I find that a board of education may not limit the opportunity of voters to choose an alternate write-in candidate for each vacancy to be filled, regardless of whether the board uses voting machines or paper ballots and regardless of whether the candidates run at-large or for specific seats.    Therefore, in all subsequent elections, the board is required to provide slots for write-in votes equal to the number of board vacancies to be filled.

Notwithstanding this irregularity, petitioner has not demonstrated sufficient basis upon which to set aside the results of the May 15, 2007 election.  Petitioner submits the affidavit of ten individuals who voted in that election.  Each affiant states “because there was only one write-in slot available in said election I was prevented from voting for the two candidates of my choice, further that if I had the opportunity to fill in another write-in slot, I would have voted differently.”  The affiants, however, do not indicate which candidates they actually voted for, nor do they state who they would have voted for instead, had another write-in slot been provided.  Thus, petitioner has failed to demonstrate that he would have been the beneficiary of any of the ten additional write-in votes, that the winning candidates would have lost any votes, or that the outcome of the May 15, 2007 election would otherwise have been different.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent board conduct all future board elections in accordance with the terms of this decision.

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