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December 06, 2023

Seeking a recount of the results of a school board election

Petitioner, an unsuccessful candidate for one of five open board seat, sought a vote recount, the voiding of board actions taken after the election if appropriate and the revision of the school district's policies relating to board elections.

The Commissioner held that the appeal must be dismissed for failure to join necessary parties as any person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such. In an appeal regarding a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed.

However, said the Commissioner of Education, even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. The Commissioner explained that "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".

In contrast, the Commissioner noted that "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, citing Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947 and  Appeal of Dodson, et al., 54 id., Decision No. 16,764).

Further, 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. In addition, opined the Commissioner, Petitioner has not established that school district violated any legal requirement or that the act of which she complains affected the outcome of the election.

As to Petitioner’s argument is that the school district improperly failed to advise her of her right to observe the opening of absentee ballots on the evening of the election, the Commissioner viewed this argument is unavailing as the school district had submitted an affidavit from its district clerk asserting that the public was, in fact, invited to observe the opening and the tallying of absentee ballots on the evening of the election and that “numerous” observers did so.  

In any event, even assuming that the school district had not extended this invitation, the Commissioner noted it has been previously held that there is no requirement that absentee ballots be opened in the presence of the candidate or their representatives, citing Appeal of Jarmond, 56 Ed Dept Rep, Decision No. 17,108 and Appeal of Georges, 45 id. 453, Decision No. 15,380.

In sum, the Commissioner found Petitioner has failed to meet her burden of proof to establish that there were voting irregularities that affected the outcome of the election. 

Click HERE to access the Commissioner's decision posted on the Internet.

 

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