Appeal of the BOARD OF EDUCATION OF THE NORTH COLONIE CENTRAL SCHOOL DISTRICT from actions taken at a special meeting of the district.

Decision No. 16,351

(May 3, 2012)

Girvin & Ferlazzo, P.C., attorneys for petitioner, Patrick J. Fitzgerald, Esq., of counsel

KING, JR., Commissioner.--Petitioner, the Board of Education of the North Colonie Central School District, seeks an order pursuant to Education Law §2037 annulling the results of a special meeting conducted by petitioner.  The appeal must be dismissed.

On January 31, 2012, petitioner held a special meeting to elect a new member of the board of education to fill a vacancy caused by the resignation of a board member.  W. Ronald Von Dell and David Rosenthal were the only candidates in the special election.  Petitioner set up polling places at each of the elementary school buildings in the district, and at two former elementary schools. 

Following the election, petitioner was advised that 248 votes were cast for candidate Von Dell and 246 votes were cast for candidate Rosenthal.  Based on the tally of votes presented to it, petitioner certified the aforesaid results at a special meeting held on January 31, 2012, and Von Dell was sworn in as a board member at the meeting.

Subsequently, petitioner became aware of discrepancies in the vote tallies at the Loudonville Elementary School ("Loudonville") and the Southgate Elementary School ("Southgate") polling places.  Election records indicate that 46 individuals signed the poll book at Loudonville prior to voting but the voting machine used at Loudonville indicated that 47 total votes were cast in the special election, resulting in one more vote being registered on the machine than the number of voters signing the poll book.  In addition, petitioner was advised that 42 individuals signed the poll book at Southgate prior to voting, but the voting machine used at Southgate recorded 25 votes for Von Dell and 44 votes for Rosenthal, for a total of 69 votes, which is 27 more votes than the number of voters recorded in the poll book as casting votes (42).

Following receipt of this information, petitioner impounded all of the voting machines used in the special election and conducted an investigation.  However, petitioner was unable to provide a definitive explanation for both the one vote discrepancy that occurred at the Loudonville polling place and the 27 vote discrepancy at the Southgate polling place.

At its meeting on February 8, 2012, petitioner adopted a resolution authorizing this appeal, which was commenced by personal service of a copy of the petition on Rosenthal on February 21, 2012 and on Von Dell on February 23, 2012.

Petitioner requests that I issue an order pursuant to Education Law §2037 annulling the election of Von Dell as a member of the board on January 31, 2012, and ordering a new election to fill the vacancy on the board.  Rosenthal agrees with the facts presented in the petition, and Von Dell does not dispute such facts.

To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also a probability that any irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905), were so pervasive that they vitiated the electoral process (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Georges, 45 id. 453, Decision No. 15,380), 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, Decision No. 11,356, affdsubnomCapobianco v. Ambach, et al., 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 Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748; Appeal of Georges, 45 id. 453, Decision No. 15,380).

The one vote discrepancy at the Loudonville polling place is insufficient to affect the results of the election since even if I were to accept, solely for purposes of argument, that one vote was improperly cast for Von Dell and must be declared void, it would still leave Von Dell with 247 votes and Rosenthal with 246.

The discrepancy at the Southgate polling place merits more scrutiny.  It appears from the record that the voting machine used in the election has a mechanical counter ("total vote counter") on the side of the machine that registers the total number of votes cast on the machine.  The front of the machine is enclosed by a curtain that can be opened and closed by the person inside.  When the curtain is opened the total vote counter registers one vote.  The inspection confirmed that the total vote counter indicated that 42 votes were cast on the machine in the January 31, 2012 special election, which is the same number of individuals who are recorded as signing the poll book.  There is nothing in the record to suggest that there was anything wrong with the functioning of the total vote counter. 

The machine also has mechanical counters ("individual vote counter") at the rear of the machine that register the total votes cast on a particular associated lever at the front of the machine.  The inspection found that Von Dell's name appeared in association with Lever 7A and Rosenthal's name appeared directly below Von Dell's name in association with Lever 7B.  All lever positions other than 7A and 7B had been blocked off so that it was not possible to cast a vote with any lever other than 7A or 7B, except that voters did have the ability to cast a "write-in" vote using the machine.  The inspection found that no write-in votes were cast on the machine, and that the individual vote counters for Lever 7A and Lever 7B indicated 25 votes for Von Dell and 44 votes for Rosenthal, respectively.

On February 6, 2012, an inspection and testing of the Southgate voting machine was conducted by petitioner's board president and vice president, superintendent, board clerk, assistant superintendent for business, candidate Von Dell, candidate Rosenthal and his wife, two voting machine custodians and the school district counsel.  Testing was conducted by repeatedly casting votes on the machine in a wide variety of ways in an attempt to replicate the vote from the January 2012 special election, and resulted in the following:

(1) Each time a vote was cast using Lever 7A or Lever 7B, a single vote was registered in the space indicated for Lever 7A or Lever 7B on the respective individual vote counter.

(2) It was possible to enter the machine, close the curtain, refrain from casting a vote, and re-open the curtain, in which case, one vote was registered on the total vote counter but no votes were registered for either individual vote counter.  But this would have resulted in the machine registering fewer, not more, votes on the individual vote counters.

(3) Because the machine would not allow more than one vote, or a vote for more than one candidate, to be cast during any one sequence of opening and closing the curtain to the machine, it was not possible to manipulate the vote so that more than one vote was registered on an individual vote counter while only one vote was registered on the total vote counter.

(4) Once the machine is reset and locked, it is not possible to manually adjust the tallies on the individual vote counters.

(5)  The voting machine custodians said that sometimes the physical process of resetting and locking the voting machine causes one of the vote counters that has been reset to zero to register a vote.  They also demonstrated that once the machine is reset and locked, it is not possible to manually adjust the tallies on the individual vote counters on the Southgate machine; that a series of keys were needed to unlock and lock the machine; and that the system of locks and keys on the machine are designed to prevent physical tampering with the vote. 

(6) There was no indication that the discrepancy was caused by tampering with the machine.

(7) Testing could not duplicate a scenario where the machine registered more votes on the individual vote counters than on the total vote counter.

Petitioner's investigation further found that prior to the January 31, 2012 special election, the last time the Southgate voting machine had been used was in the district's May 17, 2011 general election, which consisted of a budget vote and votes for two unopposed seats on the board of education.  The investigation further found that, in the May 2011 election, 27 votes were cast on the Southgate machine for a Mrs. Foster - which is the same number of votes as the discrepancy on the Southgate machine for the January 2012 special election.  It was also found that in the May 2011 election, Mrs. Foster's name appeared on Lever 7B - which is the same lever on which candidate Rosenthal's name appeared in the January 2012 special election.  Nevertheless, both the principal and the custodian for the Southgate voting machine represented to investigators that they had reviewed the rear of the machine prior to the January 2012 special election and that there were no votes registered on the individual vote counters for either Lever 7A or Lever 7B.  In addition, after the school district reviewed the lever positions used in the May 2011 election, the principal again affirmed her belief that the individual voting counters for Lever 7A and Lever 7B were set at zero at the beginning of the January 2012 election.  

Notwithstanding the representations of the principal and the voting machine custodian, based on the record before me, I find that the appeal must be dismissed for petitioner's failure to carry its burden of proof. 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  The record indicates that the 27 vote discrepancy in the January 2012 special election is attributable to the 27 votes cast on Lever 7B in the May 2011 election.  In particular, the testing results found no malfunctioning or tampering with respect to the Southgate voting machine, and the investigation revealed that in the May 2011 election 27 votes were cast on the Southgate machine for a Mrs. Foster, which is the same number of votes as the discrepancy on the Southgate machine for the January 2012 special election, and that in the May 2011 election Mrs. Foster's name appeared on Lever 7B, which is the same lever on which candidate Rosenthal's name appeared in the January 2012 special election.  The record also indicates that the 27 vote discrepancy did not affect the election results; rather, it increased the margin by which candidate Rosenthal was defeated.  In the absence of evidence in the record to suggest otherwise, I find no basis to invalidate the election results.

THE APPEAL IS DISMISSED.

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