Appeal of the BOARD OF EDUCATION OF THE
MINERVA CENTRAL SCHOOL DISTRICT
from action taken at a district meeting.

Decision No. 16,628

(July 7, 2014)

Girvin & Ferlazzo, PC, attorneys for petitioner, Kristine A. Lanchantin, Esq., of counsel

KING, JR., Commissioner.--Petitioner, the Board of Education of the Minerva Central School District, seeks an order pursuant to Education Law §2037 annulling the results of a district meeting.  The appeal must be sustained.

On June 17, 2014, petitioner conducted a district meeting for the sole purpose of holding a re-vote on the proposed 2014-2015 school district budget.  The proposed budget exceeded the statutory limitation on school district tax levies set forth in Education Law §2023-a.  Therefore, approval of the proposed budget required an affirmative vote of 60 percent of the votes cast (“super majority”) (Education Law §2023-a[6]).

At the June 17, 2014 meeting, only one voting machine was used.  At the conclusion of the vote, it was determined that the budget was approved with 260 ‘yes’ votes and 181 ‘no’ votes, including absentee ballots.  Although the budget passed by a simple majority, it failed to garner a super majority by five votes.[1]

However, upon close of the polls when the voting machine was unlocked and opened, petitioner’s voting machine clerk determined that the machine had malfunctioned because the number of voters who entered the booth did not match the number of votes cast.  Specifically, the machine counter registered 408 voters entering the voting booth but only 399 votes cast.  In his affidavit, the voting machine clerk avers that, once a voter enters the voting booth and pulls the handle to close the curtain, the only way that the handle will open thereafter is if the voter casts a vote.  If the voter does not cast a vote, the election inspectors would have to release the handle to allow the voter to exit the booth.

According to the record, no one exited the machine by asking an inspector to release the handle.  Consequently, at least nine votes failed to register on the voting machine.  The voting machine clerk also avers that, because of the above-described unexplained discrepancy and malfunction in the operation of the voting machine, it is not clear to him whether any of the votes registered correctly.  Consequently, petitioner was unable to certify the results of the June 17, 2014 budget vote.  Petitioner seeks an order setting aside the results of the vote and authorizing it to call a special district meeting for a new vote on the proposed 2014-2015 school district budget.

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, affd sub nom Capobianco v. Ambach, et al., 112 AD2d 640).

The record before me indicates that the sole voting machine used in the June 17, 2014 vote malfunctioned in failing to register nine votes and in rendering petitioner unable to conclude whether the votes cast were correctly registered.  Where the results of an election do not accurately reflect the will of the voters due to a voting machine malfunction, those results must be set aside (see Appeal of the Bd. of Educ. of the Whitehall Central School Dist., 44 Ed Dept Rep 246, Decision No. 15,161; Appeal of the Bd. of Educ. of the Fonda-Fultonville Central School Dist., 33 id. 682, Decision No. 13,195).   Therefore, I find that, in this instance, the voting machine malfunction vitiated the electoral process and a new vote is necessary.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the results of the district meeting conducted by petitioner on June 17, 2014 are hereby annulled; and

IT IS FURTHER ORDERED that petitioner is hereby authorized to call a special meeting of the district for the purpose of re-voting on the proposition presented to the voters on June 17, 2014.

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