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Law firms that represent school districts typically receive questions from district clerks and other school officials in advance of the annual school budget vote and school board election, held this year on May 20. Often calls begin with a statement like, “I know this is a silly question, but …” Invariably these are not silly questions but ones that involve nuances in the law. Below is a summary of some questions that school attorneys have received and our answers.

Voter Registration

Are school districts required to have voter registration?
Answer: No. Voter registration occurs only when voters have approved a registration process. In that case, a resident must be registered with either the school district or the local county board of elections to be eligible to vote. Once approved, such a requirement will continue indefinitely until the school board passes a resolution to discontinue personal registration at least two months before the next annual election.

Who is responsible for the registration of voters in school districts that require personal registration?
Answer: Each year, no later than 30 days after each year’s annual meeting, school boards must designate four qualified voters to constitute a board of registration. The panel serves until 30 days after the next annual meeting or election of the district.

Can the district clerk serve on the board of registration?
Answer: Yes, if he or she is a qualified voter in the school district. While a person does not need to be a resident of the school district to be appointed as the district clerk, residency is a requirement for serving on the board of registration.

Where may personal registration be conducted?
Answer: It can be held in any school building for at least four consecutive hours between 7 a.m. and 8 p.m. There can be multiple registration dates, but the last date of registration must be no more than 14 days or less than five days before the vote. Subject to voter approval, registration can also occur during specified hours of the school day at the office of the district clerk or business office by the district clerk, assistant district clerk or member of the board of registration. Also subject to voter approval, registration can occur during the hours of enrollment of children, which is effectively during kindergarten enrollment.

Can school districts with personal registration request proof of residency from the person seeking to register?
Answer: Yes. In districts with personal registration, the commissioner of education has recognized the right of school officials to request proof of residency prior to an election. There is no legal authority in the Education Law for these districts to request proof of residency when an individual appears to vote. In districts without personal registration, they are permitted to request proof of residency at the vote.

The Legal Notice

If the district clerk inadvertently fails to publish the legal notice in accordance with legal requirements (four times within the seven weeks prior to the election with a minimum of forty-five days prior to the vote), will the election be overturned?
Answer: No. However, the intentional failure to publish the legal notice in accordance with the law may be grounds to invalidate the election.

Must the budget amount be included in the legal notice?
Answer: No. In fact, the budget amount does not even have to appear in the budget proposition on the ballot. However, for transparency it is good practice to include the amount in the legal notice and on the ballot. If the budget amount has not been ascertained at the time of the first publication of the legal notice, the notice can be simply amended to include the budget amount in subsequent publications.

Propositions

How is a voter proposition submitted?
Answer: The resident must circulate a petition containing the text of the proposition and citing the approximate or actual cost, if there is one, of the proposed matter. Districts using voting machines must have a policy on the submission of propositions by the voters for the purpose of preparing ballots for the machine. The school board has the discretion to determine the number of signatures required on the petition, but it must be a reasonable number. The commissioner has held that 5 percent of the number of voters in the prior annual election is a reasonable amount of signatures. It is recommended that school boards establish requirements in policy, regardless of whether voting machines are used.

Must voter propositions be published in the legal notice?
Answer: Some propositions are required to be printed in the legal notice, while others are not. Consult with your school attorney. School boards may place a reasonable deadline for propositions to be published in the legal notice; the typical requirement is 60 days prior to the vote.

Nominating Petitions

When must the district clerk make nominating petitions available to school board candidates?
Answer: The Education Law does not provide a specific date. In fact, a candidate can circulate his/her own nominating petition, provided it contains the name and address of the candidate and the addresses of the people who signed the petition. If the election is for a specific seat, it must also identify the seat, provide the name of the incumbent and the length of term of the office to be filled.

How many signatures are required on the nominating petition?
Answer: Two percent of the number who voted at the prior year’s annual meeting or 25, whichever is greater. In calculating the two percent, always round down. For example, if 2,890 people voted at the prior year’s annual election, the two percent calculation is 57.8, which is 57 required signatures. The same rule should apply when calculating the number of signatures on a voter petition to submit a proposition on the ballot if that number is a percentage of the number of voters from the previous annual election. In small city school districts, nominating positions must be signed off by at least 100 qualified voters.

What happens if no nominating petitions are filed?
Answer: Any resident who meets the qualifications of being a board member – which primarily are being 18 years of age, a United States citizen, able to read and write and a resident of the district for the preceding one year – may be elected as a write-in candidate. If there are no write-ins then the seat is deemed vacant subject to being filled most likely by a special election for the balance of the term or by board appointment until the date of the next annual election.

The Voting Process

If a school district has multiple election districts based on the geographical location of the resident population, what happens if a voter appears at the wrong election district?
Answer: The voter should be directed to the proper election district. If the polls are about to close and there is no chance that the voter will be able to reach the proper election district before the close of the polls, the voter should be allowed to vote at the mistaken election district, provided the voter’s registration can be verified.

What happens if a voter who is not registered appears to vote in a school district with personal registration?
Answer: The voter is not allowed to vote. The voter can be registered at that time for subsequent school district elections. If the voter insists that he/she previously registered with the school district or the county board of elections, the voter should be given an affidavit ballot in which to cast his or her vote. The affidavit ballot will only be counted if it can be subsequently determined that the voter was in fact registered.

Absentee Ballots

Can the district clerk give an absentee ballot to a third party to deliver to the voter?
Answer: No. The ballot must be either mailed or hand delivered directly to the voter.

Is the absentee ballot null and void if the envelope does not contain the voter’s signature?
Answer: Yes. However, an illegible signature or a mark such as an “X” does not invalidate the ballot provided the identity of the voter can be ascertained.

Does the absentee ballot voter have to place a mark in the box next to the proposition or candidate to count the vote?
Answer: No. The vote should be counted as long as the intent of the voter can be determined. For example, a circle around the candidate’s name is a valid vote.

Election Machines

How much longer will school districts have the option of using lever machines?
Answer: Until Dec. 31, 2014. After that, all school districts must use electronic voting machines. However, a bill pending in the Assembly would extend the option through Dec. 31, 2016. Another bill would make permanent the option of using either electronic or lever machines.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Neil M. Block of Ingerman Smith, LLP.

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