Appeal of JOSEPH GOETHE and ROBERT BENNETT from action of the Board of Education of the Skaneateles Central School District and trustees Kerry Brogan, Michael Kell, and Amanda Nugent regarding a school district election.[1]

Decision No. 18,108

(April 11, 2022)

Camardo Law Firm, PC, attorneys for petitioner, Kevin M. Cox, Esq., of counsel

Allegany Schenectady Schoharie Saratoga Board of Cooperative Educational Services, attorneys for respondent Board of Education of the Skaneateles Central School District and trustees Kerry Brogan, Michael Kell, and Amanda Nugent, Bethany Centrone, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal from action of the Board of Education of the Skaneateles Central School District (“board” or “respondent”) in connection with the district’s May 2021 school board election.  They additionally join trustees Kerry Brogan, Michael Kell, and Amanda Nugent, the successful candidates in the election (“elected trustees”).[2]  The appeal must be dismissed.

On May 18, 2021, the board held an election in which district residents voted to fill three board seats.  Five candidates were listed on the ballot, including petitioners.  The elected trustees received the greatest number of votes.  This appeal ensued.   

Petitioners allege that the voting machines used during the election were incorrectly programmed such that the machines did not accurately record candidates’ votes.  Petitioners also allege that the chief election inspector “forced” voters to vote for three candidates even though voters were legally permitted to vote for one or two candidates.  Petitioners further allege that respondent violated Education Law § 2018-a (11) when they failed to examine and count all absentee ballots in view of the public.  Petitioners further speculate that a discrepancy between the number of votes cast and the number of signatures in the voter rolls may have inured to the benefit of the elected trustees.  For relief, petitioners request a new election. 

Respondent denies that it committed any errors that warrant a new election.  Respondent specifically argues that the district “does not have personal voter registration and, therefore, Education Law 2018-a is inapplicable to its elections.”  Respondent also admits that it erroneously suggested that voters had to vote for three candidates but asserts that this constituted harmless error.

First, I must address a procedural matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, in order to invalidate the results of a school district election, the petitioner must either:  (1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or (2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (see Matter of Boyes v Allen, 32 AD2d 990, 991 [3d Dept 1969], affd 26 NY2d 709 [1970]; Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Levine, 24 id. 172, Decision No. 11,356, affd sub nom. Capobianco v Ambach, 112 AD2d 640 [3d Dept 1985]).  Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an election are so pervasive as to vitiate the fundamental fairness of the election (see Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  It is well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results (Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947; Appeal of Dodson, et al., 54 id., Decision No. 16,764).

On this record, petitioners have not established that respondent violated any legal requirement or that any of the acts of which they complain affected the outcome of the election.  First, petitioners maintain that the county programmed the voting machines before it had access to copies of the ballots, which meant that the order of candidates read by the machines did not match the order in which they were listed on the ballots.  Petitioners suggest that this caused inaccurate vote tallies.

Petitioners’ contentions are specifically refuted by an affidavit submitted by the Deputy Commissioner of Elections for the Cayuga County Board of Elections (“deputy commissioner”).  In the affidavit, the deputy commissioner asserts that the order in which names appeared on the machine tapes indicated “the order that names were entered into the voting machines,” and that the order is “completely irrelevant to the candidates’ ballot line,” which links the vote to the candidate.  She further elaborates that the alphanumeric designations appearing next to the candidates’ names were related to “political party lines and were meaningless with regard to the district election because there was no party affiliation for Board of Education candidates.”  The deputy commissioner additionally asserts that the voting machines were tested prior to delivery to ensure that votes would be counted for the correct candidates.  She submits screen shots of the tests with her affidavit, which demonstrate that the voting machines tallied the votes accurately.  Therefore, there is no evidence that the divergent order of candidates had any effect on the recording of votes.

Petitioners also argue that the election results should be annulled because there were more ballots counted by the voting machines than accounted for in the voter rolls, absentee ballot totals, and resident affidavits.  Specifically, petitioners maintain that there were 1319 voters accounted for in the voter rolls while there were 1325 total certified votes, a discrepancy of six votes.  While unfortunate, “it is not unusual for discrepancies to exist between the machine count and the sign-in sheets at the conclusion of an election” (Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380; Appeals of Laskas-Gillespie, 40 id. 568, Decision No. 14,559).  Moreover, petitioners provide no evidence showing how this irregularity affected the outcome of the election.  Without any such evidence, it is equally plausible that the six votes were cast in favor of petitioners or the elected trustees. 

Petitioners further allege that respondent violated Education Law § 2018-a (11) when they failed to examine and count all absentee ballots in view of the public.  Education Law § 2018-a (11) requires that, during the examination of absentee ballots, “any qualified voter present in the polling place may object to the voting of the ballot contained in any envelope.”  Education Law § 2018-a applies to school districts that utilize personal registration.  Respondent, however, utilizes poll registration.  That process is governed by Education Law § 2018-b and does not contain a comparable provision (compare Education Law § 2018-a [1] with § 2018-b [1]).  Both the district clerk and school business manager (“business manager”) aver that the district utilizes poll registration.  Therefore, petitioners’ claim is dismissed.[3] 

Finally, petitioners allege that the chief election inspector erroneously instructed voters that their ballot would not be counted unless they selected three candidates.  Petitioners provide an affidavit from a voter, Julia Wamp.  Ms. Wamp avers that, at approximately 7:45 a.m. on the day of the election, she overheard the chief election inspector “telling one of the individuals working the ballot machines that every ballot required three (3) selections for school board,” and if someone only wanted to vote for two candidates, “they would need to write in a third candidate’s name” or the ballot would be considered incomplete and invalid.  Heeding this advice, Ms. Wamp “wrote in an arbitrary third name” on her ballot; she indicates that she told her two children to do the same.[4]  Ms. Wamp further affirms that, after leaving the polling site, she spoke with the chief election inspector, who stated that “every ballot must have three candidates to be valid” and that “[t]hree choices are required.”  Petitioners submit affidavits from three additional district voters, who reported hearing, at different times throughout the day, that their votes would count only if they voted for three candidates.

In their answer, respondent admits that they provided inaccurate information but assert that the error was quickly rectified.  Specifically, the chief election inspector affirms that at approximately 7:30 a.m., an election inspector advised her that a voter was experiencing difficulty scanning a ballot into one of the voting machines.  The voter appeared to select only two candidates.  At 7:51 a.m., the chief election inspector spoke with the district clerk, who “believed that the ballot was being rejected because three candidates needed to be selected ....”  At approximately 8:05 a.m., the district clerk contacted the County Board of Elections, which clarified that there was no such requirement.  Immediately thereafter, the district clerk “personally told all election inspectors ... that voters did not need to vote for three candidates and they should not tell voters to vote for any [specific] number of candidates.”  The chief election inspector admits that two voters directly received this erroneous advice; she otherwise asserts that no other “voter [was] advised by an employee or election inspector that they must choose three of the candidates listed on the ballot or ha[ve] to vote for any particular candidate.”[5] 

Based on this evidence, petitioners have failed to establish that there were voting irregularities that affected the outcome of the election.  Only one district voter, Eric Goetzmann, submitted an affidavit sufficiently alleging that his vote was affected by respondent’s error.[6]  Mr. Goetzmann asserts that he voted for petitioners and believed that he needed to select a third candidate for his ballot to count.  Therefore, he asserts that he “vote[d] for a third candidate [who was] on the ballot ....”  This discrepancy of a single vote, however, would not have affected the outcome of the election, as four votes separated petitioner Bennett from the elected trustee with the lowest number of votes.  Therefore, I decline to order a new election.

The record suggests that the effect of misinformation shared directly with two voters became amplified as voters either overheard such statements (as described by Ms. Wamp) or discussed them with each other (as described by Mr. Wishik).  While this single error does not demonstrate a clear and convincing picture of informality, I nevertheless admonish respondent to exercise greater caution going forward.

THE APPEAL IS DISMISSED.

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