N.Y. Election Law § 16-106: Proceedings as to the casting and canvass of ballots

§ 16-106. Proceedings as to the casting and canvass of ballots. 1.

The post-election refusal to cast: (a) challenged ballots, blank

ballots, or void ballots; (b) early mail, absentee, military, special,

or federal write-in ballots; (c) emergency ballots; and (d) ballots

voted in affidavit envelopes may be contested in a proceeding instituted

in the supreme or county court, by any candidate or the chairman of any

party committee, and by any voter with respect to the refusal to cast

such voter's ballot, against the board of canvassers of the returns from

such district, if any, and otherwise against the board of inspectors of

election of such district. If the court determines that the person who

cast such ballot was entitled to vote at such election, it shall order

such ballot to be cast and canvassed, including if the court finds that

ministerial error by the board of elections or any of its employees

caused such ballot envelope not to be valid on its face.

2. The canvass of returns by the state, or county, city, town or

village board of canvassers may be contested, in a proceeding instituted

in the supreme court by any voter, except a proceeding on account of the

failure of the state board of canvassers to act upon new returns of a

board of canvassers of any county made pursuant to the order of a court

or justice, which may be instituted only by a candidate aggrieved or a

voter in the county.

3. The attorney general, on behalf of the state, and the chairman of

the state committee of a party, may institute any proceeding allowed

herein relating to the returns of canvass by inspectors upon the vote of

any ballot proposal submitted to the people of the state.

4. The court shall ensure the strict and uniform application of the

election law and shall not permit or require the altering of the

schedule or procedures in section 9-209 of this chapter but may direct a

recanvass or the correction of an error, or the performance of any duty

imposed by this chapter on such a state, county, city, town or village

board of inspectors, or canvassers.

5. In the event procedural irregularities or other facts arising

during the election suggest a change or altering of the canvass

schedule, as provided for in section 9-209 of this chapter, may be

warranted, a candidate may seek an order for temporary or preliminary

injunctive relief or an impound order halting or altering the canvassing

schedule of early mail, absentee, military, special or affidavit

ballots. Upon any such application, the board or boards of elections

have a right to be heard. To obtain such relief, the petitioner must

meet the criteria in article sixty-three of the civil practice law and

rules and show by clear and convincing evidence, that, because of

procedural irregularities or other facts arising during the election,

the petitioner will be irreparably harmed absent such relief. For the

purposes of this section, allegations that opinion polls show that an

election is close is insufficient to show irreparable harm to a

petitioner by clear and convincing evidence.

6. A proceeding under subdivisions one and three of this section must

be instituted within twenty days and under subdivision two, within

thirty days after the election or alleged erroneous statement or

determination was made, or the time when the board shall have acted in

the particulars as to which it is claimed to have failed to perform its

duty, except that such a proceeding with respect to a village election

must be instituted within ten days after such election, statement,

determination or action.