N.Y. Election Law § 9-209: Canvass of early mail, absentee, military and special ballots, and ballots cast in affidavit envelopes

§ 9-209. Canvass of early mail, absentee, military and special

ballots, and ballots cast in affidavit envelopes.

Before completing the canvass of votes cast in any primary, general,

special, or other election at which voters are required to sign their

registration poll records before voting, the board of elections shall

proceed in the manner hereinafter prescribed to review, cast and canvass

early mail, any absentee, military, special presidential, special

federal or other special ballots and any ballots cast in affidavit

envelopes, including ballots cast by voters pursuant to section 8-604 of

this chapter. Each such ballot shall be retained in the original

envelope containing the voter's affidavit and signature, in which it is

delivered to the board of elections until such time as it is to be

reviewed, in order to be cast and canvassed.

1. Central board of canvassers. Within four days of the receipt of an

early mail, absentee, military or special ballot, the board of elections

shall designate itself or such of its employees as it shall deem

appropriate as a set of poll clerks to review such ballot envelopes. The

board may designate additional sets of poll clerks and if it designates

more than one such set shall apportion among all such sets the election

districts from which such ballots have been received, provided that when

reviewing ballots, all ballots from a single election district shall be

assigned to a single set of clerks, and that each such set shall be

divided equally between representatives of the two major political

parties. Each such set of clerks shall be deemed a central board of

canvassers for purposes of this section.

2. Review of early mail, absentee, military and special ballot

envelopes. Within four days of the receipt of an early mail, absentee,

military or special ballot before the election, and within one day of

receipt on or after the election, each central board of canvassers shall

examine the ballot affirmation envelopes as nearly as practicable in the

following manner:

(a) If a person whose name is on a ballot envelope as a voter is not

on a registration poll record, the computer-generated list of registered

voters or the list of special presidential voters, or if there is no

name on the ballot envelope, or if the ballot envelope was not timely

postmarked or received, or if the ballot envelope is completely

unsealed, such ballot envelope shall be set aside unopened for review

pursuant to subdivision eight of this section with a relevant notation

indicated on the ballot envelope notwithstanding a split among the

central board of canvassers as to the invalidity of the ballot;

provided, however, if the ballot envelope is completely unsealed, such

voter shall receive notice pursuant to paragraph (h) of subdivision

three of this section.

(b) If there is more than one timely ballot envelope executed by the

same voter, the one bearing the later date of execution shall be

accepted and the other rejected. If it cannot be determined which ballot

envelope bears the later date, then all such ballot envelopes shall be

rejected. When the board of elections has issued a second ballot it

shall set aside the first ballot unopened to provide the voter time to

return the second ballot. Notwithstanding the foregoing, if a ballot

envelope for a voter was previously reviewed and opened, then the

subsequently received ballot envelope shall be set aside unopened.

(c) If such person is found to be registered, the central board of

canvassers shall compare the signature, if any, on each ballot envelope

with the signature, if any, on the registration poll record, the

computer-generated list of registered voters, or the list of special

presidential voters, of the person of the same name who registered from

the same address. If the signatures are found to correspond, such

central board of canvassers shall certify thereto in a manner provided

by the state board of elections.

(d) If such person is found to be registered and has requested a

ballot, the ballot envelope shall be opened, the ballot or ballots

withdrawn, unfolded, stacked face down and deposited in a secure ballot

box or envelope. Upon such processing of the ballot, the voter's record

shall be updated with a notation that indicates that the voter has

already voted in such election. The board of elections shall adopt

procedures, consistent with regulations of the state board of elections,

to prevent voters from voting more than once and to secure ballots and

prevent public release of election results prior to election day. Such

procedures shall be filed with the state board of elections at least

ninety days before they shall be effective.

(e) In the case of a primary election, the ballot shall be deposited

in the box only if the ballot is of the party with which the voter is

enrolled according to the entry on the back of his or her registration

poll record or in the computer-generated registration list; if not, the

ballot shall be rejected without inspection or unfolding and shall be

returned to the ballot envelope which shall be endorsed "not enrolled".

(f) If the central board of canvassers determines that a person was

entitled to vote at such election it shall prepare such ballot to be

stacked face down and deposited in a secure ballot box or envelope

consistent with paragraph (d) of this subdivision if such board 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.

(g) If the central board of canvassers splits as to whether a ballot

is valid, it shall prepare such ballot to be cast and canvassed pursuant

to this subdivision.

(h) As each ballot envelope is opened, if one or more of the different

kinds of ballots to be voted at the election are not found therein, the

central board of canvassers, shall make a memorandum showing what ballot

or ballots are missing. If a ballot envelope shall contain more than one

ballot for the same offices, all the ballots in such ballot envelope

shall be rejected. When the review of such ballots shall have been

completed, the central board of canvassers shall ascertain the number of

such ballots of each kind which have been deposited in the ballot box by

deducting from the number of ballot envelopes opened with the number of

missing ballots, and shall make a return thereof. The number of voters'

ballots deposited in the ballot box shall be added to the number of

other ballots deposited in the ballot box, in order to determine the

number of all ballots of each kind to be accounted for in the ballot

box.

3. Curing ballots. (a) At the time a ballot affirmation envelope is

reviewed pursuant to subdivision two of this section, the board of

elections shall determine whether it has a curable defect.

(b) A curable defect includes instances where the ballot envelope: (i)

is unsigned; (ii) has a signature that does not correspond to the

registration signature; (iii) has no required witness to a mark; (iv) is

returned without a ballot affirmation envelope in the return envelope;

(v) has a ballot affirmation envelope that is signed by the person that

has provided assistance to the voter but is not signed or marked by the

voter; (vi) contains the signature of someone other than the voter and

not of the voter; or (vii) is returned by mail between two and seven

days after the election without a postmark.

(c) The board shall indicate the issue that must be cured on the

ballot envelope and, within one day of such determination, send to the

voter's address indicated in the registration records and, if different,

the mailing address indicated on the ballot application, a notice

explaining the reason for such rejection and the procedure to cure the

rejection. The board shall also contact the voter by either electronic

mail or telephone, if such information is available to the board in the

voter's registration information, in order to notify the voter of the

deficiency and the opportunity and the process to cure the deficiency.

(d) The voter may cure the aforesaid defects by filing a duly signed

affirmation attesting to the same information required by the ballot

affirmation envelope and attesting that the signer of the affirmation is

the same person who submitted such ballot envelope; provided, however,

that for the defect described in subparagraph (vii) of paragraph (b) of

this subdivision, such affirmation shall also include an attestation

that the voter mailed the ballot envelope on or before the day of the

election. The board shall include a form of such affirmation with the

notice to the voter. The affirmation shall be in a form prescribed by

the state board of elections, and with such affirmation the board of

elections shall provide to the voter a domestic postage paid return

envelope which may be used if the voter returns the cure affirmation in

paper form by mail. A cure affirmation, at the option of any voter

submitting such cure affirmation, may be transmitted to the board of

elections in person, by mail or in electronic form as an attachment to

an email. Such cure affirmation may also be provided to the board of

elections as an uploaded electronic document if such board of elections

provides such functionality. The cure affirmation, whether in paper or

electronic form, shall include the signature of the voter duly affixed

to the appropriately completed cure affirmation form.

(e) Such cure affirmation shall be received by the board no later than

seven business days after the board's mailing of such curable rejection

notice or by five p.m. on the seventh day following the election,

whichever is later. Any cure affirmation received electronically as an

email attachment or by upload prior to midnight of the last day to cure

is timely. Provided the board determines that such affirmation addresses

the curable defect, the rejected ballot shall be reinstated and prepared

for canvassing pursuant to subdivision two of this section. If the board

of elections is split as to the sufficiency of the cure affirmation,

such envelope shall be prepared for canvassing pursuant to paragraph (d)

of subdivision two of this section.

(f) If the ballot envelope contains one or more curable defects that

have not been timely cured, the ballot envelope shall be set aside for

review pursuant to subdivision eight of this section.

(g) Ballot envelopes are not invalid and do not require a cure if: (i)

a ballot envelope is undated or has the wrong date, provided it is

postmarked on or prior to election day or is otherwise received timely

by the board of elections; (ii) the voter signed or marked the ballot

affirmation envelope at a place on the envelope other than the

designated signature line; (iii) a voter used a combination of ink (of

any color) or pencil to complete the ballot envelope; (iv) papers found

in the ballot envelope with the ballot are materials from the board of

elections, such as instructions or an application sent by the board of

elections; (v) an extrinsic mark or tear on the ballot envelope appears

to be there as a result of the ordinary course of mailing or

transmittal; (vi) the ballot envelope is sealed using tape, paste or any

other binding agent or device and there is no indication of tampering;

or (vii) the ballot envelope is partially unsealed but there is no

ability to access the ballot.

(h) When the board of elections invalidates a ballot affirmation

envelope and the defect is not curable, the ballot envelope shall be set

aside for review pursuant to subdivision eight of this section and the

board shall notify the voter by mail, sent within three business days of

such rejection, and by either electronic mail or telephone, if such

information is available to the board in the voter's registration

information, and notify the voter of other options for voting, and, if

time permits, provide the voter with a new ballot.

(i) If a ballot affirmation envelope is received by the board of

elections prior to the election and is found to be completely unsealed

and thus invalid, the board shall notify the voter by mail, sent within

three business days of such determination, and by either electronic mail

or telephone, if such information is available to the board in the

voter's registration information, and notify the voter of other options

for voting, and, if time permits, provide the voter with a new ballot.

4. Review of federal write-in absentee ballots. (a) Such central board

of canvassers shall review any federal write-in absentee ballots validly

cast by an early mail voter, an absentee voter, a military voter or a

special federal voter for the offices of president and vice-president,

United States senator and representative in congress. Such central board

of canvassers shall also review any federal write-in absentee ballots

validly cast by a military voter for all questions or proposals, public

offices or party positions for which a military voter is otherwise

eligible to vote as provided in section 10-104 of this chapter.

(b) Federal write-in absentee ballots shall be deemed valid only if:

(i) an application for an early mail, absentee, military or special

federal ballot was received from the early mail, absentee, military or

special federal voter; (ii) the federal write-in absentee ballot was

submitted from inside or outside the United States by a military voter

or was submitted from outside the United States by a special federal

voter; (iii) such ballot is received by the board of elections not later

than thirteen days following the day of election or seven days after a

primary election; and (iv) the early mail, absentee, military or special

federal ballot which was sent to the voter is not received by the board

of elections by the thirteenth day following the day of a general or

special election or the seventh day after a primary election.

(c) If such a federal write-in absentee ballot is received after

election day, the envelope in which it is received must contain: (i) a

cancellation mark of the United States postal service or a foreign

country's postal service; (ii) a dated endorsement of receipt by another

agency of the United States government; or (iii) if cast by a military

voter, the signature and date of the voter and one witness thereto with

a date which is ascertained to be not later than the day of the

election.

(d) If such a federal write-in absentee ballot contains the name of a

person or persons in the space provided for a vote for any office, such

ballot shall be counted as a vote for such person or persons. A vote for

a person who is the candidate of a party or independent body either for

president or vice-president shall be deemed to be a vote for both the

candidates of such party or independent body for such offices. If such a

ballot contains the name of a party or independent body in the space

provided for a vote for any office, such ballot shall be deemed to be a

vote for the candidate or candidates, if any, of such party or

independent body for such office. In the case of the offices of

president and vice-president a vote cast for a candidate, either

directly or by writing in the name of a party or independent body, shall

also be deemed to be votes for the electors supporting such candidate.

Any abbreviation, misspelling or other minor variation in the form of

the name of a candidate or a party or independent body shall be

disregarded in determining the validity of the ballot, if the voter's

intention can be ascertained.

5. Nothing in this section prohibits a representative of a candidate,

political party, or independent body entitled to have watchers present

at the polls in any election district in the board's jurisdiction from

observing, without objection, the review of ballot envelopes required by

subdivisions two, three, four, and seven of this section.

6. Casting and canvassing of early mail, absentee, military and

special ballots. (a) The following provisions shall apply to the casting

and canvassing of all valid ballots received before, on or after

election day and reviewed and prepared pursuant to subdivision two of

this section, and all other provisions of this chapter with respect to

casting and canvassing such ballots which are not inconsistent with this

subdivision shall be applicable to such ballots.

(b) The day before the first day of early voting, the central board of

canvassers shall scan all valid ballots previously reviewed and prepared

pursuant to this section as nearly as practicable in the following

manner:

(i) Such ballots may be separated into sections before being placed in

the counting machine and scanned;

(ii) Upon completion of the scanning of such valid ballots, the

scanners used for such purpose shall be secured, and no tabulation of

the results shall occur until one hour before the close of the polls on

election day. Any ballots scanned during this period shall be secured in

the same manner as voted ballots cast during early voting or on election

day. The board of elections shall adopt procedures to prevent the public

release of election results prior to the close of polls on election day

and such procedures shall be consistent with the regulations of the

state board of elections and shall be filed with the state board of

elections at least ninety days before they shall be effective;

(iii) Any valid ballots that cannot be cast on a scanner shall be held

inviolate and unexamined and shall be duly secured until after the close

of polls on election day when such ballots shall be examined and

canvassed in a manner consistent with subdivision two of section 9-110

of this article.

(c) After the close of the polls on the last day of early voting, the

central board of canvassers shall scan all valid ballots received and

prepared pursuant to this section, and not previously scanned on the day

before the first day of early voting, in the same manner as provided in

paragraph (b) of this subdivision using the same or different scanners.

(d) In casting and canvassing such ballots, the board shall take all

measures necessary to ensure the privacy of voters.

(e) The board of elections may begin to obtain tabulated results for

all ballots previously scanned, as required by this subdivision, one

hour before the scheduled close of polls on election day; provided,

however, no unofficial tabulations of election results shall be publicly

announced or released in any manner until after the close of polls on

election day at which time such tabulations shall be added into the

election night vote totals.

(f) Upon completing the casting and canvassing of any remaining valid

ballots as hereinabove provided for any election district, the central

board of canvassers shall thereupon, as nearly as practicable in the

manner provided in this article for early mail, absentee, military and

special ballots, verify the number of ballots so cast, tally the votes

so cast, add such tally to the previous tally of all votes cast in such

election district, and record the result.

(g) The record of the vote counted by each scanner and manually for

each candidate and for and against each ballot proposal, printed by

election district, shall be preserved in the same manner and for the

same period as the returns of canvass for the election.

7. Post-election review and canvassing of affidavit ballots. (a)

Within four business days of the election, the board of elections shall

review all affidavit ballots cast in the election. If the central board

of canvassers determines that a person was entitled to vote at such

election it shall cast and canvass such affidavit ballot; provided,

however, if the board of elections receives one or more timely early

mail or absentee ballots from a voter who also cast an affidavit ballot

at a poll site, the last such timely early mail or absentee ballot

received shall be canvassed and the affidavit ballot shall be set aside

unopened; and provided further, if a voter was issued an early mail or

absentee ballot and votes in person via an affidavit ballot and the

board does not receive such early mail or absentee ballot, the affidavit

ballot shall be canvassed if the voter is otherwise qualified to vote in

such election.

(b) Affidavit ballots are valid when cast at a polling site permitted

by law by qualified voters: (i) who moved within the state after

registering; (ii) who are in inactive status; (iii) whose registration

was incorrectly transferred to another address even though they did not

move; (iv) whose registration poll records were missing on the day of

such election; (v) who have not had their identity previously verified;

(vi) whose registration poll records did not show them to be enrolled in

the party in which they are enrolled; (vii) who are incorrectly

identified as having already voted; and (viii) who have registered to

vote pursuant to section 8-604 of this chapter.

(c) Affidavit ballots are valid to the extent that ministerial error

by the board of elections or any of its employees caused such ballot

envelope not to be valid on its face.

(d) If the central board of canvassers determines that a person was

entitled to vote at such election, the board shall cast and canvass such

affidavit ballot if such board finds that the voter appeared at a

polling place, in the correct county, which is designated as a polling

place for the correct assembly district, regardless of the fact that the

voter may have appeared in the incorrect election district or polling

place, and regardless of whether the voter's name was in the

registration poll record; provided, however, that in the event such

ballot includes one or more offices for which such person is not

entitled to vote at such election, such ballot shall only be cast and

canvassed for the offices for which such person is entitled to vote at

such election.

(e) If the central board of canvassers finds that a voter submitted a

voter registration application through the electronic voter registration

transmittal system pursuant to title eight of article five of this

chapter and signed the affidavit ballot, the board shall cast and

canvass such affidavit ballot if the voter is otherwise qualified to

vote in such election.

(f) If the central board of canvassers determines that a person was

entitled to vote at such election, the board shall cast and canvass such

affidavit ballot if such board finds that the voter substantially

complied with the requirements of this chapter. For purposes of this

paragraph, "substantially complied" shall mean the board can determine

the voter's eligibility based on the statement of the affiant or records

of the board.

(g) If the central board of canvassers finds that the statewide voter

registration list supplies sufficient information to identify a voter,

failure by the voter to include on the affidavit ballot envelope the

address where such voter was previously registered shall not be a fatal

defect and the board shall cast and canvass such affidavit ballot.

(h) (i) If a voter registration application for a person was received

by a board of elections by the tenth day prior to the election, an

affidavit ballot from the person shall be cast and counted if the voter

is otherwise qualified to vote in such election, notwithstanding the

fact that the person's name was omitted from a registration poll record

or list of registered voters.

(ii) If the central board of canvassers finds that the voter

registered or pre-registered to vote for the first time pursuant to

title nine of article five of this chapter at least ten days before a

primary, appeared at such primary election, and indicated on the

affidavit ballot envelope the intent to enroll in such party, the

affidavit ballot shall be cast and canvassed if the voter is otherwise

qualified to vote in such election.

(i) A voter registration submitted by a person registering to vote at

an early voting polling location pursuant to section 8-604 of this

chapter shall be processed and an affidavit ballot from such person

shall be cast and canvassed if the voter is otherwise qualified to vote

in such election, notwithstanding the fact that the person's name is not

on a registration poll record or list of registered voters.

(j) When the central board of canvassers determines that an affidavit

ballot is invalid due to a missing signature on the affidavit ballot

envelope, or because the signature on the affidavit ballot envelope does

not correspond to the registration signature, such ballots shall be

subject to the cure procedure in subdivision three of this section. The

absence of a signature on a registration poll record or computer

generated list of registered voters shall not provide a basis for

rejecting affidavit ballots submitted pursuant to section 8-604 of this

chapter.

(k) At the meeting required pursuant to paragraph (a) of subdivision

eight of this section, each candidate, political party, and independent

body shall be entitled to object to the board of elections'

determination that an affidavit ballot is invalid. Such ballots shall

not be counted absent an order of the court. In no event may a court

order a ballot that has been counted to be uncounted.

* (l) The board of elections shall enter information into the ballot

tracking system, as defined in sections 8-414 and 8-712 of this chapter,

to allow a voter who cast a ballot in an early voting or affidavit

envelope to determine if the vote was counted.

* NB There are 2 par l's

* (l) The provisions of this subdivision shall apply notwithstanding

any other provision of this chapter.

* NB There are 2 par l's

8. Post-election review of invalid early mail, absentee, military and

special ballots. (a) Within four business days of the election, the

board of elections shall designate itself or such of its employees to

act as a central board of canvassers as provided in subdivision one of

this section and meet to review early mail, absentee, military and

special ballots determined to be invalid pursuant to paragraph (a) of

subdivision two of this section, ballot envelopes that were returned to

the board as undeliverable, and ballot envelopes containing one or more

curable defects that have not been timely cured.

(b) At least five days prior to the time fixed for such meeting, the

board shall send notice by first class mail to each candidate, political

party, and independent body entitled to have had watchers present at the

polls in any election district in the board's jurisdiction. Such notice

shall state the time and place fixed by the board for such post-election

review.

(c) Each such candidate, political party, and independent body shall

be entitled to appoint such number of watchers to attend upon each

central board of canvassers as the candidate, political party, or inde-

pendent body was entitled to appoint at the election in any election

district for which the central board of canvassers is designated to act.

(d) Upon assembling at the time and place fixed for such meeting, each

central board of canvassers shall review the ballot envelopes determined

to be invalid and set aside in the review required by subdivision two of

this section, ballot envelopes that were returned as undeliverable, and

ballot envelopes containing one or more curable defects that have not

been timely cured.

(e) Each such candidate, political party, and independent body shall

be entitled to object to the board of elections' determination that a

ballot is invalid. Such ballots shall not be counted absent an order of

the court. In no event may a court order a ballot that has been counted

to be uncounted.

9. State board of elections; powers and duties for canvassing of early

mail, absentee, military, special and affidavit ballots. The state board

of elections shall promulgate rules and regulations necessary for the

implementation of the provisions of this section. Such rules and

regulations shall include, but not be limited to, provisions to (a)

ensure an efficient and fair review process that respects the privacy of

the voter, (b) ensure the security of the central count scanners used

before election day, and (c) ensure that ballots cast as provided in

this section are canvassed and counted as if cast on election day.