§ 9-209 — Canvass of early mail, absentee, military and special ballots, and ballots cast in affidavit envelopes

New York § 9-209

• Jurisdiction: New York
• Law ELN: Election
• Title 2: Canvass By Board of Elections
• Art. 9: Canvass of Results

Text

§ 9-209. Canvass of early mail, absentee, military and special\nballots, and ballots cast in affidavit envelopes.\n Before completing the canvass of votes cast in any primary, general,\nspecial, or other election at which voters are required to sign their\nregistration poll records before voting, the board of elections shall\nproceed in the manner hereinafter prescribed to review, cast and canvass\nearly mail, any absentee, military, special presidential, special\nfederal or other special ballots and any ballots cast in affidavit\nenvelopes, including ballots cast by voters pursuant to section 8-604 of\nthis chapter. Each such ballot shall be retained in the original\nenvelope containing the voter's affidavit and signature, in which it is\ndelivered to the board of elections until such time as it is to be\nreviewed, in order to be cast and canvassed.\n 1. Central board of canvassers. Within four days of the receipt of an\nearly mail, absentee, military or special ballot, the board of elections\nshall designate itself or such of its employees as it shall deem\nappropriate as a set of poll clerks to review such ballot envelopes. The\nboard may designate additional sets of poll clerks and if it designates\nmore than one such set shall apportion among all such sets the election\ndistricts from which such ballots have been received, provided that when\nreviewing ballots, all ballots from a single election district shall be\nassigned to a single set of clerks, and that each such set shall be\ndivided equally between representatives of the two major political\nparties. Each such set of clerks shall be deemed a central board of\ncanvassers for purposes of this section.\n 2. Review of early mail, absentee, military and special ballot\nenvelopes. Within four days of the receipt of an early mail, absentee,\nmilitary or special ballot before the election, and within one day of\nreceipt on or after the election, each central board of canvassers shall\nexamine the ballot affirmation envelopes as nearly as practicable in the\nfollowing manner:\n (a) If a person whose name is on a ballot envelope as a voter is not\non a registration poll record, the computer-generated list of registered\nvoters or the list of special presidential voters, or if there is no\nname on the ballot envelope, or if the ballot envelope was not timely\npostmarked or received, or if the ballot envelope is completely\nunsealed, such ballot envelope shall be set aside unopened for review\npursuant to subdivision eight of this section with a relevant notation\nindicated on the ballot envelope notwithstanding a split among the\ncentral board of canvassers as to the invalidity of the ballot;\nprovided, however, if the ballot envelope is completely unsealed, such\nvoter shall receive notice pursuant to paragraph (h) of subdivision\nthree of this section.\n (b) If there is more than one timely ballot envelope executed by the\nsame voter, the one bearing the later date of execution shall be\naccepted and the other rejected. If it cannot be determined which ballot\nenvelope bears the later date, then all such ballot envelopes shall be\nrejected. When the board of elections has issued a second ballot it\nshall set aside the first ballot unopened to provide the voter time to\nreturn the second ballot. Notwithstanding the foregoing, if a ballot\nenvelope for a voter was previously reviewed and opened, then the\nsubsequently received ballot envelope shall be set aside unopened.\n (c) If such person is found to be registered, the central board of\ncanvassers shall compare the signature, if any, on each ballot envelope\nwith the signature, if any, on the registration poll record, the\ncomputer-generated list of registered voters, or the list of special\npresidential voters, of the person of the same name who registered from\nthe same address. If the signatures are found to correspond, such\ncentral board of canvassers shall certify thereto in a manner provided\nby the state board of elections.\n (d) If such person is found to be registered and has requested a\nballot, the ballot envelope shall be opened, the ballot or ballots\nwithdrawn, unfolded, stacked face down and deposited in a secure ballot\nbox or envelope. Upon such processing of the ballot, the voter's record\nshall be updated with a notation that indicates that the voter has\nalready voted in such election. The board of elections shall adopt\nprocedures, consistent with regulations of the state board of elections,\nto prevent voters from voting more than once and to secure ballots and\nprevent public release of election results prior to election day. Such\nprocedures shall be filed with the state board of elections at least\nninety days before they shall be effective.\n (e) In the case of a primary election, the ballot shall be deposited\nin the box only if the ballot is of the party with which the voter is\nenrolled according to the entry on the back of his or her registration\npoll record or in the computer-generated registration list; if not, the\nballot shall be rejected without inspection or unfolding and shall be\nreturned to the ballot envelope which shall be endorsed "not enrolled".\n (f) If the central board of canvassers determines that a person was\nentitled to vote at such election it shall prepare such ballot to be\nstacked face down and deposited in a secure ballot box or envelope\nconsistent with paragraph (d) of this subdivision if such board finds\nthat ministerial error by the board of elections or any of its employees\ncaused such ballot envelope not to be valid on its face.\n (g) If the central board of canvassers splits as to whether a ballot\nis valid, it shall prepare such ballot to be cast and canvassed pursuant\nto this subdivision.\n (h) As each ballot envelope is opened, if one or more of the different\nkinds of ballots to be voted at the election are not found therein, the\ncentral board of canvassers, shall make a memorandum showing what ballot\nor ballots are missing. If a ballot envelope shall contain more than one\nballot for the same offices, all the ballots in such ballot envelope\nshall be rejected. When the review of such ballots shall have been\ncompleted, the central board of canvassers shall ascertain the number of\nsuch ballots of each kind which have been deposited in the ballot box by\ndeducting from the number of ballot envelopes opened with the number of\nmissing ballots, and shall make a return thereof. The number of voters'\nballots deposited in the ballot box shall be added to the number of\nother ballots deposited in the ballot box, in order to determine the\nnumber of all ballots of each kind to be accounted for in the ballot\nbox.\n 3. Curing ballots. (a) At the time a ballot affirmation envelope is\nreviewed pursuant to subdivision two of this section, the board of\nelections shall determine whether it has a curable defect.\n (b) A curable defect includes instances where the ballot envelope: (i)\nis unsigned; (ii) has a signature that does not correspond to the\nregistration signature; (iii) has no required witness to a mark; (iv) is\nreturned without a ballot affirmation envelope in the return envelope;\n(v) has a ballot affirmation envelope that is signed by the person that\nhas provided assistance to the voter but is not signed or marked by the\nvoter; (vi) contains the signature of someone other than the voter and\nnot of the voter; or (vii) is returned by mail between two and seven\ndays after the election without a postmark.\n (c) The board shall indicate the issue that must be cured on the\nballot envelope and, within one day of such determination, send to the\nvoter's address indicated in the registration records and, if different,\nthe mailing address indicated on the ballot application, a notice\nexplaining the reason for such rejection and the procedure to cure the\nrejection. The board shall also contact the voter by either electronic\nmail or telephone, if such information is available to the board in the\nvoter's registration information, in order to notify the voter of the\ndeficiency and the opportunity and the process to cure the deficiency.\n (d) The voter may cure the aforesaid defects by filing a duly signed\naffirmation attesting to the same information required by the ballot\naffirmation envelope and attesting that the signer of the affirmation is\nthe same person who submitted such ballot envelope; provided, however,\nthat for the defect described in subparagraph (vii) of paragraph (b) of\nthis subdivision, such affirmation shall also include an attestation\nthat the voter mailed the ballot envelope on or before the day of the\nelection. The board shall include a form of such affirmation with the\nnotice to the voter. The affirmation shall be in a form prescribed by\nthe state board of elections, and with such affirmation the board of\nelections shall provide to the voter a domestic postage paid return\nenvelope which may be used if the voter returns the cure affirmation in\npaper form by mail. A cure affirmation, at the option of any voter\nsubmitting such cure affirmation, may be transmitted to the board of\nelections in person, by mail or in electronic form as an attachment to\nan email. Such cure affirmation may also be provided to the board of\nelections as an uploaded electronic document if such board of elections\nprovides such functionality. The cure affirmation, whether in paper or\nelectronic form, shall include the signature of the voter duly affixed\nto the appropriately completed cure affirmation form.\n (e) Such cure affirmation shall be received by the board no later than\nseven business days after the board's mailing of such curable rejection\nnotice or by five p.m. on the seventh day following the election,\nwhichever is later. Any cure affirmation received electronically as an\nemail attachment or by upload prior to midnight of the last day to cure\nis timely. Provided the board determines that such affirmation addresses\nthe curable defect, the rejected ballot shall be reinstated and prepared\nfor canvassing pursuant to subdivision two of this section. If the board\nof elections is split as to the sufficiency of the cure affirmation,\nsuch envelope shall be prepared for canvassing pursuant to paragraph (d)\nof subdivision two of this section.\n (f) If the ballot envelope contains one or more curable defects that\nhave not been timely cured, the ballot envelope shall be set aside for\nreview pursuant to subdivision eight of this section.\n (g) Ballot envelopes are not invalid and do not require a cure if: (i)\na ballot envelope is undated or has the wrong date, provided it is\npostmarked on or prior to election day or is otherwise received timely\nby the board of elections; (ii) the voter signed or marked the ballot\naffirmation envelope at a place on the envelope other than the\ndesignated signature line; (iii) a voter used a combination of ink (of\nany color) or pencil to complete the ballot envelope; (iv) papers found\nin the ballot envelope with the ballot are materials from the board of\nelections, such as instructions or an application sent by the board of\nelections; (v) an extrinsic mark or tear on the ballot envelope appears\nto be there as a result of the ordinary course of mailing or\ntransmittal; (vi) the ballot envelope is sealed using tape, paste or any\nother binding agent or device and there is no indication of tampering;\nor (vii) the ballot envelope is partially unsealed but there is no\nability to access the ballot.\n (h) When the board of elections invalidates a ballot affirmation\nenvelope and the defect is not curable, the ballot envelope shall be set\naside for review pursuant to subdivision eight of this section and the\nboard shall notify the voter by mail, sent within three business days of\nsuch rejection, and by either electronic mail or telephone, if such\ninformation is available to the board in the voter's registration\ninformation, and notify the voter of other options for voting, and, if\ntime permits, provide the voter with a new ballot.\n (i) If a ballot affirmation envelope is received by the board of\nelections prior to the election and is found to be completely unsealed\nand thus invalid, the board shall notify the voter by mail, sent within\nthree business days of such determination, and by either electronic mail\nor telephone, if such information is available to the board in the\nvoter's registration information, and notify the voter of other options\nfor voting, and, if time permits, provide the voter with a new ballot.\n 4. Review of federal write-in absentee ballots. (a) Such central board\nof canvassers shall review any federal write-in absentee ballots validly\ncast by an early mail voter, an absentee voter, a military voter or a\nspecial federal voter for the offices of president and vice-president,\nUnited States senator and representative in congress. Such central board\nof canvassers shall also review any federal write-in absentee ballots\nvalidly cast by a military voter for all questions or proposals, public\noffices or party positions for which a military voter is otherwise\neligible to vote as provided in section 10-104 of this chapter.\n (b) Federal write-in absentee ballots shall be deemed valid only if:\n(i) an application for an early mail, absentee, military or special\nfederal ballot was received from the early mail, absentee, military or\nspecial federal voter; (ii) the federal write-in absentee ballot was\nsubmitted from inside or outside the United States by a military voter\nor was submitted from outside the United States by a special federal\nvoter; (iii) such ballot is received by the board of elections not later\nthan thirteen days following the day of election or seven days after a\nprimary election; and (iv) the early mail, absentee, military or special\nfederal ballot which was sent to the voter is not received by the board\nof elections by the thirteenth day following the day of a general or\nspecial election or the seventh day after a primary election.\n (c) If such a federal write-in absentee ballot is received after\nelection day, the envelope in which it is received must contain: (i) a\ncancellation mark of the United States postal service or a foreign\ncountry's postal service; (ii) a dated endorsement of receipt by another\nagency of the United States government; or (iii) if cast by a military\nvoter, the signature and date of the voter and one witness thereto with\na date which is ascertained to be not later than the day of the\nelection.\n (d) If such a federal write-in absentee ballot contains the name of a\nperson or persons in the space provided for a vote for any office, such\nballot shall be counted as a vote for such person or persons. A vote for\na person who is the candidate of a party or independent body either for\npresident or vice-president shall be deemed to be a vote for both the\ncandidates of such party or independent body for such offices. If such a\nballot contains the name of a party or independent body in the space\nprovided for a vote for any office, such ballot shall be deemed to be a\nvote for the candidate or candidates, if any, of such party or\nindependent body for such office. In the case of the offices of\npresident and vice-president a vote cast for a candidate, either\ndirectly or by writing in the name of a party or independent body, shall\nalso be deemed to be votes for the electors supporting such candidate.\nAny abbreviation, misspelling or other minor variation in the form of\nthe name of a candidate or a party or independent body shall be\ndisregarded in determining the validity of the ballot, if the voter's\nintention can be ascertained.\n 5. Nothing in this section prohibits a representative of a candidate,\npolitical party, or independent body entitled to have watchers present\nat the polls in any election district in the board's jurisdiction from\nobserving, without objection, the review of ballot envelopes required by\nsubdivisions two, three, four, and seven of this section.\n 6. Casting and canvassing of early mail, absentee, military and\nspecial ballots. (a) The following provisions shall apply to the casting\nand canvassing of all valid ballots received before, on or after\nelection day and reviewed and prepared pursuant to subdivision two of\nthis section, and all other provisions of this chapter with respect to\ncasting and canvassing such ballots which are not inconsistent with this\nsubdivision shall be applicable to such ballots.\n (b) The day before the first day of early voting, the central board of\ncanvassers shall scan all valid ballots previously reviewed and prepared\npursuant to this section as nearly as practicable in the following\nmanner:\n (i) Such ballots may be separated into sections before being placed in\nthe counting machine and scanned;\n (ii) Upon completion of the scanning of such valid ballots, the\nscanners used for such purpose shall be secured, and no tabulation of\nthe results shall occur until one hour before the close of the polls on\nelection day. Any ballots scanned during this period shall be secured in\nthe same manner as voted ballots cast during early voting or on election\nday. The board of elections shall adopt procedures to prevent the public\nrelease of election results prior to the close of polls on election day\nand such procedures shall be consistent with the regulations of the\nstate board of elections and shall be filed with the state board of\nelections at least ninety days before they shall be effective;\n (iii) Any valid ballots that cannot be cast on a scanner shall be held\ninviolate and unexamined and shall be duly secured until after the close\nof polls on election day when such ballots shall be examined and\ncanvassed in a manner consistent with subdivision two of section 9-110\nof this article.\n (c) After the close of the polls on the last day of early voting, the\ncentral board of canvassers shall scan all valid ballots received and\nprepared pursuant to this section, and not previously scanned on the day\nbefore the first day of early voting, in the same manner as provided in\nparagraph (b) of this subdivision using the same or different scanners.\n (d) In casting and canvassing such ballots, the board shall take all\nmeasures necessary to ensure the privacy of voters.\n (e) The board of elections may begin to obtain tabulated results for\nall ballots previously scanned, as required by this subdivision, one\nhour before the scheduled close of polls on election day; provided,\nhowever, no unofficial tabulations of election results shall be publicly\nannounced or released in any manner until after the close of polls on\nelection day at which time such tabulations shall be added into the\nelection night vote totals.\n (f) Upon completing the casting and canvassing of any remaining valid\nballots as hereinabove provided for any election district, the central\nboard of canvassers shall thereupon, as nearly as practicable in the\nmanner provided in this article for early mail, absentee, military and\nspecial ballots, verify the number of ballots so cast, tally the votes\nso cast, add such tally to the previous tally of all votes cast in such\nelection district, and record the result.\n (g) The record of the vote counted by each scanner and manually for\neach candidate and for and against each ballot proposal, printed by\nelection district, shall be preserved in the same manner and for the\nsame period as the returns of canvass for the election.\n 7. Post-election review and canvassing of affidavit ballots. (a)\nWithin four business days of the election, the board of elections shall\nreview all affidavit ballots cast in the election. If the central board\nof canvassers determines that a person was entitled to vote at such\nelection it shall cast and canvass such affidavit ballot; provided,\nhowever, if the board of elections receives one or more timely early\nmail or absentee ballots from a voter who also cast an affidavit ballot\nat a poll site, the last such timely early mail or absentee ballot\nreceived shall be canvassed and the affidavit ballot shall be set aside\nunopened; and provided further, if a voter was issued an early mail or\nabsentee ballot and votes in person via an affidavit ballot and the\nboard does not receive such early mail or absentee ballot, the affidavit\nballot shall be canvassed if the voter is otherwise qualified to vote in\nsuch election.\n (b) Affidavit ballots are valid when cast at a polling site permitted\nby law by qualified voters: (i) who moved within the state after\nregistering; (ii) who are in inactive status; (iii) whose registration\nwas incorrectly transferred to another address even though they did not\nmove; (iv) whose registration poll records were missing on the day of\nsuch election; (v) who have not had their identity previously verified;\n(vi) whose registration poll records did not show them to be enrolled in\nthe party in which they are enrolled; (vii) who are incorrectly\nidentified as having already voted; and (viii) who have registered to\nvote pursuant to section 8-604 of this chapter.\n (c) Affidavit ballots are valid to the extent that ministerial error\nby the board of elections or any of its employees caused such ballot\nenvelope not to be valid on its face.\n (d) If the central board of canvassers determines that a person was\nentitled to vote at such election, the board shall cast and canvass such\naffidavit ballot if such board finds that the voter appeared at a\npolling place, in the correct county, which is designated as a polling\nplace for the correct assembly district, regardless of the fact that the\nvoter may have appeared in the incorrect election district or polling\nplace, and regardless of whether the voter's name was in the\nregistration poll record; provided, however, that in the event such\nballot includes one or more offices for which such person is not\nentitled to vote at such election, such ballot shall only be cast and\ncanvassed for the offices for which such person is entitled to vote at\nsuch election.\n (e) If the central board of canvassers finds that a voter submitted a\nvoter registration application through the electronic voter registration\ntransmittal system pursuant to title eight of article five of this\nchapter and signed the affidavit ballot, the board shall cast and\ncanvass such affidavit ballot if the voter is otherwise qualified to\nvote in such election.\n (f) If the central board of canvassers determines that a person was\nentitled to vote at such election, the board shall cast and canvass such\naffidavit ballot if such board finds that the voter substantially\ncomplied with the requirements of this chapter. For purposes of this\nparagraph, "substantially complied" shall mean the board can determine\nthe voter's eligibility based on the statement of the affiant or records\nof the board.\n (g) If the central board of canvassers finds that the statewide voter\nregistration list supplies sufficient information to identify a voter,\nfailure by the voter to include on the affidavit ballot envelope the\naddress where such voter was previously registered shall not be a fatal\ndefect and the board shall cast and canvass such affidavit ballot.\n (h) (i) If a voter registration application for a person was received\nby a board of elections by the tenth day prior to the election, an\naffidavit ballot from the person shall be cast and counted if the voter\nis otherwise qualified to vote in such election, notwithstanding the\nfact that the person's name was omitted from a registration poll record\nor list of registered voters.\n (ii) If the central board of canvassers finds that the voter\nregistered or pre-registered to vote for the first time pursuant to\ntitle nine of article five of this chapter at least ten days before a\nprimary, appeared at such primary election, and indicated on the\naffidavit ballot envelope the intent to enroll in such party, the\naffidavit ballot shall be cast and canvassed if the voter is otherwise\nqualified to vote in such election.\n (i) A voter registration submitted by a person registering to vote at\nan early voting polling location pursuant to section 8-604 of this\nchapter shall be processed and an affidavit ballot from such person\nshall be cast and canvassed if the voter is otherwise qualified to vote\nin such election, notwithstanding the fact that the person's name is not\non a registration poll record or list of registered voters.\n (j) When the central board of canvassers determines that an affidavit\nballot is invalid due to a missing signature on the affidavit ballot\nenvelope, or because the signature on the affidavit ballot envelope does\nnot correspond to the registration signature, such ballots shall be\nsubject to the cure procedure in subdivision three of this section. The\nabsence of a signature on a registration poll record or computer\ngenerated list of registered voters shall not provide a basis for\nrejecting affidavit ballots submitted pursuant to section 8-604 of this\nchapter.\n (k) At the meeting required pursuant to paragraph (a) of subdivision\neight of this section, each candidate, political party, and independent\nbody shall be entitled to object to the board of elections'\ndetermination that an affidavit ballot is invalid. Such ballots shall\nnot be counted absent an order of the court. In no event may a court\norder a ballot that has been counted to be uncounted.\n * (l) The board of elections shall enter information into the ballot\ntracking system, as defined in sections 8-414 and 8-712 of this chapter,\nto allow a voter who cast a ballot in an early voting or affidavit\nenvelope to determine if the vote was counted.\n * NB There are 2 par l's\n * (l) The provisions of this subdivision shall apply notwithstanding\nany other provision of this chapter.\n * NB There are 2 par l's\n 8. Post-election review of invalid early mail, absentee, military and\nspecial ballots. (a) Within four business days of the election, the\nboard of elections shall designate itself or such of its employees to\nact as a central board of canvassers as provided in subdivision one of\nthis section and meet to review early mail, absentee, military and\nspecial ballots determined to be invalid pursuant to paragraph (a) of\nsubdivision two of this section, ballot envelopes that were returned to\nthe board as undeliverable, and ballot envelopes containing one or more\ncurable defects that have not been timely cured.\n (b) At least five days prior to the time fixed for such meeting, the\nboard shall send notice by first class mail to each candidate, political\nparty, and independent body entitled to have had watchers present at the\npolls in any election district in the board's jurisdiction. Such notice\nshall state the time and place fixed by the board for such post-election\nreview.\n (c) Each such candidate, political party, and independent body shall\nbe entitled to appoint such number of watchers to attend upon each\ncentral board of canvassers as the candidate, political party, or inde-\npendent body was entitled to appoint at the election in any election\ndistrict for which the central board of canvassers is designated to act.\n (d) Upon assembling at the time and place fixed for such meeting, each\ncentral board of canvassers shall review the ballot envelopes determined\nto be invalid and set aside in the review required by subdivision two of\nthis section, ballot envelopes that were returned as undeliverable, and\nballot envelopes containing one or more curable defects that have not\nbeen timely cured.\n (e) Each such candidate, political party, and independent body shall\nbe entitled to object to the board of elections' determination that a\nballot is invalid. Such ballots shall not be counted absent an order of\nthe court. In no event may a court order a ballot that has been counted\nto be uncounted.\n 9. State board of elections; powers and duties for canvassing of early\nmail, absentee, military, special and affidavit ballots. The state board\nof elections shall promulgate rules and regulations necessary for the\nimplementation of the provisions of this section. Such rules and\nregulations shall include, but not be limited to, provisions to (a)\nensure an efficient and fair review process that respects the privacy of\nthe voter, (b) ensure the security of the central count scanners used\nbefore election day, and (c) ensure that ballots cast as provided in\nthis section are canvassed and counted as if cast on election day.\n