NYSSBA S 6th ANNUAL DISTRICT CLERK WORKSHOP. Elections Update

Transcription

1 NYSSBA S 6th ANNUAL DISTRICT CLERK WORKSHOP Elections Update Prepared and Presented by Kimberly A. Fanniff Senior Staff Counsel September 15 Rochester September 22 Albany September 29 Long Island

2 SCHOOL DISTRICT ELECTIONS Appeal of Reed, 55 Ed Dept Rep, Dec. No. 16,871 (2016). In Appeal of Reed, the petitioner challenged his election loss alleging the electronic voting machine did not count a write in ballot for him. Had the vote been counted Reed and the other candidate, Hatcher, would have tied. The district clerk averred that during the course of the election there was no review of the scanned ballots to determine if write-in votes were cast on the ballots. The day after the election the clerk reviewed the scanned ballots and discovered this disputed ballot which contained write-in votes for candidates in spots other than those so designated. Upon the advice of counsel, the ballot was not counted to avoid improperly conducting a recount, which only the commissioner may order. The district as part of its papers stated it did not object to the commissioner ordering a recount or new vote if it was determined an error occurred. The commissioner examined a certified copy of the ballot in question and identified two issues. First, rather than filling in the oval next to the voter s candidate of choice, the voter wrote the names of his selections under each seat. Compounding this error, the voter did not write his selections in the boxes designated for write-ins but rather in a box directly under each candidate s name. According to the commissioner, a voter is not precluded from writing in a candidate s name even if it is already printed on the ballot. In determining whether the ballot should be counted, the commissioner considered interpretations of election law as guidance for interpreting the education law. Cases in the election law context have allowed votes for candidates to be counted when the names were written in the correct column but the wrong row. Where the intent of the voters is apparent it should not be frustrated by technical rules. Similarly, Education Law 2034 provides that if it is impossible to determine the voter s choice than the ballot shall not be counted for such office. The commissioner determined, in this case, it was not impossible to determine the choice of the voter in question. Based on the foregoing, the commissioner found that the petitioner established both that irregularities occurred and affected the outcome of the election. Specifically, she found error that the ballots were not reviewed for write-in votes and that the ballot in question should have been counted. As such she annulled the election results and ordered a new election be held no later than annual vote in May Appeal of the Bd. of Educ. of Hempstead UFSD, 55 Ed Dept Rep, Dec. No. 16,878 (2016). In Appeal of the Board of Education of Hempstead Union Free School District, the board sought to annul the May 2015 election results for two board seats. In its petition, the board alleges respondents Jackson and Toure, the two highest vote getters, filed defective campaign expenditure reports, that campaign workers for the respondents engaged in threats and fraud to gain entry into voting booths with voters for the purpose of influencing the voters, improper electioneering and irregularities with absentee ballots. The Hempstead Board hired 4 Spanish-language translators, certified as bilingual by the local civil service commission to be in the voting room. At issue, in the appeal, was the presence of a volunteer translator not hired by the district, who accompanied at least one voter into the voting booth. According to the commissioner, the school district could insist its translators be utilized by the voters since election law provisions allowing voters to seek help from a person of their own choosing are not applicable. The commissioner declined to find that one instance of the volunteer translator gaining access to the voting booth with a voter affected the results of the election. The district also claimed individuals working for the respondents campaigns engaged in electioneering just outside the voting room. Furthermore, the joint campaign manager for the respondent

3 loudly challenged the impartiality of the district s translators in the voting room. The commissioner stated that proof of improper electioneering alone is not sufficient basis to invalidate election results. Here the district did not identify any specific individuals to whom the statements were made or provide evidence that the statements influenced voters. To prevent similar problems, districts should ensure distance markers are prominently placed marking the no electioneering zone. The district also alleged issues with the absentee ballot process. According to statements from two residents, Mason and Jordan, an unidentified woman appeared at their home the night before the election and gave one of the voters, Mason, an absentee ballot to fill out. As part of his statement, Mason explained he did not mail an application for an absentee ballot, he is capable of voting on his own, and that he was not aware an application with a legally compelling reason was required in order to vote by absentee ballot. Additionally, the district submitted an affirmation detailing that absentee ballots were being hand-delivered to the polling site by a group of individuals. According to the commissioner, no law prevents individuals from carrying multiple absentee ballots into the polling place on the day of election and it would be entirely speculative to conclude that such conduct raises doubt as to the integrity of the voting process. The commissioner also points out in a footnote that the statements from Mason and Jordan were not sworn. Both statements contained language that the signatory was duly sworn and made the affidavit under penalty of perjury but neither was sworn to or signed before a notary public. As such, the commissioner stated that the statements are considered unsworn. Deficient campaign expenditure statements were also raised in the Hempstead appeal. Under the law if a candidate spends less than $500 he or she simple needs to attest to that. However, if a candidate spends $500 or more he or she must provide an itemized list of expenditures and contributions. The statements must be filed at three points, 30 days before the election, 5 days before and 20 days after the election. Special rules apply if candidates receive a contribution in excess of $1,000 after the close of a reporting period. Respondents Toure and Jackson filed their first two statements (initially due April 20 and May 14) on May 18. Jackson s first statement said she had no expenditures or contributions and her second statement said she did not have expenditures or contributions in excess of $500. Toure s first statement claimed no expenditures or contributions but her second statement identified expenditures and contributions in excess of $500, but an itemized statement was not attached to the report. The commissioner opined that a candidate s incomplete statement of campaign expenditures is not a sufficient basis to set aside election results. Furthermore, enforcement of the filing requirements is through a proceeding instituted in state supreme court, thus depriving the commissioner jurisdiction. The commissioner also found that the petitioner failed to establish that the role of money affected the outcome of the election. Appeals of Ghezzi and Farr, 55 Ed Dept Rep, Dec. No. 16,890 (2016). The decision in Appeals of Ghezzi and Farr emphasizes the difficult burden a petitioner bears when seeking to overturn an election. A petitioner must provide sufficient evidence to overcome the presumption of regularity in the conduct of elections. In this case, the commissioner found that based on the record before her, the petitioners failed to prove that the irregularities which occurred affected the outcome of the election or were so pervasive as to affect the fundamental fairness of the election. As proof of the alleged irregularities the petitioners submitted 29 boiler plate affidavits where voters checked off various irregularities described in general terms that they observed or experienced. The commissioner found particularly significant the fact that none of the 29 voters who filled out affidavits stated that they were unable to vote no. Many of petitioners claims were rooted in alleged violations of the election law. Generally speaking, the election law does not apply to school district elections. Education Law section 2609, applicable to small city school districts, including Albany, states that elections shall be conducted in accordance with the provisions of the election law except as otherwise provided herein (emphasis

4 supplied). The commissioner explained that where the education law contains specific provisions pertaining to school district votes that conflict with the election law, the education law prevails. As such, the commissioner rejected claims regarding alleged violations of the election law as it relates to limitations of number of voters assigned to election districts, locked ballot boxes, and paper ballot procedures. The petitioners claimed the district failed to provide a sufficient number of ballots for the scanner machines causing long lines and chaos at the polling places. The school district admitted that 8 of its 15 polling sites ran out of ballots at some point during the day. However, the district provided 25 paper ballots to each polling place in case such shortage were to occur. The district instructed election inspectors to make copies of the paper ballots, if that supply ran low in order to insure ballots were available. According to the commissioner, the board did not supply a sufficient number of ballots but the emergency measures put in place were reasonable. The commissioner noted that while one polling place endured significant delay (45 minutes), the petitioners failed to show that the distribution of an insufficient number of ballots resulted in a sufficient number of voters being unable to vote so as to overturn the results. Long lines and inconvenience for voters did not constitute an interference that affected the outcome of the vote. The commissioner, however, urged the district to take steps to avoid such a situation in the future. The petitioners also alleged absentee ballots were improperly counted before the closing of the polls. Affidavits submitted did show that at one polling place an inspector started counting the absentee ballots shortly before the closing of the polls. However, voters who were present were able to challenge absentee ballots as the inspector was opening them. The commissioner deemed this violation de minimus and determined it did not affect the outcome of the election. The commissioner also rejected petitioners claim that not all permanently disabled voters were mailed an absentee ballot because the district clerk submitted an affidavit stating that she mailed an absentee ballot to every voter on the list supplied to her by the board of elections. As such the commissioner determined the claim was entirely speculative and dismissed it. The commissioner also rejected claims that the election inspectors lacked proper training and the district violated the provisions against improper advocacy. The education law does not contain any specific training requirements for election inspectors and the district showed it provided training on procedures to the inspectors. Lastly, the commissioner concluded the flyer the petitioners challenged as improperly advocating for passage of the bond was purely factual in nature. The commissioner ruled that on the record before her the petitioners did not establish that the irregularities compromised the electoral process such that the will of the voters could not be ascertained and the fundamental fairness of the process was impacted. Ultimately, the petitioners failed to submit proof that the irregularities committed resulted in a sufficient number of voters not voting to cast doubt on the outcome of the referendum. Appeal of Bishop, 55 Ed Dept Rep, Dec. No. 16,892 (2016). The commissioner of education refused to overturn a district s revote on the budget finding that the petitioner failed to prove any irregularities occurred, let alone affected the outcome of the election. The board of education held a regularly scheduled meeting on the night of the revote. The petitioner claimed this was in violation of Education Law 2025, which provides that no motions shall be in order during the hours specified for voting. According to the commissioner, this provision is archaic an pertains to the time when all school district meetings were held by hand or voice vote rather than by ballot. Generally, school elections are now held by ballot with or without the use of voting machines. Since the board meeting was not a meeting in which voters convened to decide the budget and elect board members, it was permissible for the board to hold a meeting on the day of the re-vote. The commissioner also rejected petitioner s argument that the board s appointment of the business administrator to serve as clerk pro tem while the district clerk was serving as election

5 chairperson led to voter confusion. Prior commissioner decisions have established that it is permissible for the board to appoint the district clerk as chairperson and another individual as temporary clerk. Lastly, the commissioner found there were an appropriate number of election inspectors present throughout the vote. The petitioner claimed the board failed to provide a sufficient number of inspectors. While the board had initially appointed only 2 inspectors, when 4 were required, the superintendent using his delegated authority to make emergency appointments had appointed another two inspectors prior to the re-vote. Therefore, the district was compliant with the requirement that it have two inspectors for each voting machine. Based on the foregoing, the petitioner failed to prove any irregularities occurred and the commissioner upheld the results of the budget re-vote. Appeal of Nahas, 55 Ed Dept Rep, Dec. No. 16,816 (Aug. 18, 2015). In March 2015, the district held a bond vote to approval $69 million bond for renovations, repairs and new construction on the district s schools and administrative offices. Petitioner challenged the outcome of the bond vote alleging the district provided grossly incorrect statement regarding the tax impact of the referendum. In order to invalidate a school district vote a petitioner must establish not only the irregularities occurred but that the irregularities actually affected the outcome of the election, were so pervasive they vitiated the electoral process or demonstrate informality to the point of laxity in adherence to the Education Law. According to the petitioner, the board understated the impact of the bond referendum stating that the total additional cost would be $106/year on the average tax payer. Petitioner alleged the actual impact is $106/year only until 2023 and thereafter it will be approximately $500/year. The district explained that it characterized the impact as a net tax impact as the district will retire a 2001 bond previously approved in 2023 and that the tax impact of the 2015 bond would essentially replace the impact of the retired bond. The district felt it was easier to describe a net impact rather than characterizing a decrease in taxes when the 2001 bond was retired and an increase in taxes based upon the 2015 bond. The district also stated that it held numerous informational meetings at which the tax impact of the proposed bond was discussed and explained. The commissioner determined that even if the information provided by the district was incorrect or misleading that petitioner failed to prove such information affected the outcome of the election. Petitioner s claim was merely speculative and she failed to sustain her burden of proof because mere speculation as to the effect of alleged irregularities does provide a sufficient basis to overturn an election. Appeal of Leger-Vargas, 54 Ed Dept Rep, Dec. No. 16,771 (June 17, 2015). Appeal of O Brien, 54 Ed Dept Rep, Dec. No. 16,772 (June 17, 2015). Appeal of Munoz-Feliciano, 54 Ed Dept Rep, Dec. No. 16,773 (June 17, 2015). In Appeal of Leger-Vargas, Appeal of O Brien, and Appeal of Munoz-Feliciano three unsuccessful candidates outlined the same or similar alleged irregularities regarding the election. The petitioners claimed the district violated the prohibition against exhorting the voters through certain correspondence and allowing robo-calls supporting certain candidates to be made from a district system. Additionally, the petitioners challenged the appointment of the election chairperson and procedure used to tally the votes. To invalidate election results a petitioner must establish that irregularities occurred and that such irregularities actually affected the outcome of the election, were so pervasive as to vitiate the electoral process or demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law. A sitting board member sent s from her personal account to a number of residents questioning the impartiality of the petitioners and indicating they were aligned with a special interest

6 group in the district. The petitioners alleged the s amounted to slander, libel, defamation, intimidation, cyberbullying and more. According to the commissioner, because the board member sent the s from her personal account and did not indicate that she was speaking on behalf of the board no improper advocacy occurred. Individual board members are entitled to express their individual views about issues concerning the district and engage in partisan activities provided no district funds are expended. The superintendent received an the day before the election with an attached flyer in support of certain candidates that bore the district s logo. He forwarded the to several staff members asking if anyone knew of the source of the or flyer. The district argued it only shared the for investigative purposes. The commissioner concluded such investigatory activities did not constitute improper advocacy. The appeals also asserted that a robo-call in support of the winning candidates was made from the district s parent notification system. The candidates who sponsored the robo-call provided an invoice with proof of payment to an outside company and also stated telephone numbers were not obtained through the district. Additionally, district staff asserted only they had access to the parent notification system and it was not used as alleged. The commissioner determined the petitioners did not establish district resources were improperly used. The education law requires school boards to appoint a qualified voter as chairperson of the election. In 2012, the board appointed as chairperson its then president, who was present for the election and tallying the ballots. Petitioners alleged this was improper. The commissioner explained that the education law does not contain any restriction barring a board member from serving as chairperson. An allegation the ballots were improperly counted behind closed doors was rejected as well. The chairperson provided an affidavit stating that the ballots were counted in the presence of others and no one was excluded from witnessing the tally. The mere presence of the president was not enough to invalidate the results. The commissioner declined to annul the election results based upon any of the alleged irregularities and noted removal of the superintendent or board members was moot since they no longer served in those positions. The commissioner noted that the petitioners failed to submit any voter affidavits demonstrating that the alleged actions of the respondents influenced his or her vote and therefore, did not establish any election irregularity occurred. The decision also reiterates the commissioner lacks authority to resolve defamation or slander claims, issue reprimands or fines or order someone to issue an apology. Nonetheless, the commissioner urged the board to ensure school officials and employees are mindful to avoid even an appearance of impropriety. Appeal of Emond, 54 Ed Dep t Rep, Dec. No. 16,754 (May 8, 2015). An unsuccessful write-in candidate challenged the results of the 2014 district election alleging electioneering and other improprieties affected the outcome of the election. Emond was serving as a per diem substitute in the district at the time of the election. She understood that if elected she would be unable to continue to substitute teach. In her petition, Emond claimed that an election inspector told voters that votes cast for Emond would not be counted because she was a school employee and that such statement discouraged individuals from voting for her. While Emond, submitted 9 voter affidavits only 6 affidavits addressed the issue of the comment. According to the commissioner, she failed to establish that the alleged irregularity affected the outcome of the election because petitioner lost by 95 votes. Additionally, the petitioner argued the district failed to provide for voter privacy. The district was using lever voting machines but was unable to secure additional paper for those machines to accommodate a large write in vote. Instead, the district prepared paper ballots for anyone to use who wished to vote for a write in candidate. Further detracting from voter privacy was the failure of the district to provide any sort of screened area for voters to fill out the ballot. The district acknowledged that it improperly provided separate paper ballots only for write-in candidates contrary to prior commissioner s

7 decisions. The four voters who submitted affidavits addressing voter privacy each stated that while uncomfortable with the lack of privacy they still cast a vote for the candidate of his or her choice. Therefore, the commissioner found these irregularities did not affect the outcome of the election. However, the commissioner cautioned the district to ensure full compliance with commissioner s decisions in future elections and to review its election practices with respect to voter privacy. Appeal of Berg, 53 Ed Dept Rep, Dec. No. 16,616 (June 20, 2014). Berg challenged several irregularities with respect to the conduct of the May 2013 budget vote. First Berg argued that the school district improperly published and disseminated materials that advocated for passage of the budget. School districts are barred from using public monies to advocate for partisan positions. Here the district published a budget newsletter which contained statements linking the district s property values with the strength of the school system. The commissioner has not found such statements to constitute improper advocacy but has found they present close questions. As such he reminded the school district to ensure that any future newsletters are strictly objective and factual. Petitioner also argued that the school district improperly demarcated the 100 foot antielectioneering zone and such failure violated petitioner s constitutional rights. The distance markers were allegedly place in excess of 100 feet from the entrance to the polling place. The commissioner dismissed this claim as moot given that petitioner only sought an order to ensure that the school complied with the 100 foot anti electioneering zone and the school district offered evidence it had complied with the requirement at its June 2013 revote. Appeal of Touré, 54 Ed Dept Rep, Dec. No. 16,600 (August 28, 2014). The commissioner of education annulled the election results with respect to the May 2014 election of a school board member in the Hempstead school district. In Appeal of Toure, the commissioner cited a degree of laxity in the handling of absentee ballots that threatened the integrity of the (May 20) election. In the May balloting, seven individuals vied for two seats- one full term and a second for a shorter term to fill a vacancy. The issue in the appeal involved who was entitled to the shorter term. On election day, the petitioner who was the second-highest vote-getter, received 712 votes, while the third, an incumbent, received 691 votes. At a board meeting on election day, the incumbent made a motion for the board to suspend accepting the candidates until the remaining absentee ballots could be verified the following day. At an emergency meeting the day after the election, as a result of the final tally, the incumbent won the shorter term seat by six votes. Petitioner appealed and was granted interim relief precluding the school district from declaring a winner. To overturn an election, a petitioner must prove not only that irregularities occurred but that the irregularities actually affected the outcome of the election. The commissioner found that there was no question here that there were irregularities throughout the election. The only question to be determined was if irregularities regarding the issuance and receipt of absentee ballots, actually affected the outcome of the election. As of Friday, prior to the election, the district clerk had mailed 231 absentee ballots. By the date of the election an additional 301 absentee ballots had been issued. The commissioner expressed concern that the extraordinarily high volume of absentee ballots issued one business day prior to the election, coupled with evidence that individuals improperly solicited false applications and votes on behalf of the incumbent, suggest a severe risk of fraud that vitiated the fundamental fairness of the election. In addition, the school district had failed to maintain a list of the absentee ballots that were sent out. Therefore, it could not be determined how many absentee ballot applications were received, how many ballots were issued, whether those issued were valid in accordance with law or whether the absentee ballots were validly cast. For these reasons, the commissioner overturned the election results for

8 the shorter term vacancy and ordered a new election. The commissioner also admonished the board to ensure that all future board meetings and elections are conducted in accordance with applicable provisions of law, regulations and board policies.