Assembly Bill A11353A

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                11353--A

                          I N  A S S E M B L Y

                              June 3, 2010
                               ___________

Introduced  by  COMMITTEE  ON  RULES -- (at request of M. of A. Millman,
  Molinaro) -- read once and referred to the Committee on  Election  Law
  --  reported and referred to the Committee on Rules -- Rules Committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to the Committee on Rules

AN ACT to amend the election law, in relation to opening of the polls

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 8-102 of the election law, paragraph (b) of subdi-
vision 1 as amended by chapter 263 of the laws of 2003, paragraph (i) of
subdivision 1 as amended by chapter 537 of the laws of 1985 and subdivi-
sion 2 as amended by chapter 9 of the laws of 1978, is amended  to  read
as follows:
  S 8-102. Polls; opening of. 1. The inspectors of election, and clerks,
if  any,  shall  meet at the polling place at least one-half hour before
the time set for opening  the  polls  of  election.  The  inspectors  of
election shall:
  (a) See that the American flag is displayed.
  (b)  Cause  the  facsimile ballots and voter information posting to be
posted conspicuously within the polling place.
  (c) Cause the distance markers to be  placed  at  a  distance  of  one
hundred feet from the polling place.
  (d)  Establish  a guard-rail by delineating and marking out the voting
area by a suitable means. The [voting machine,] BALLOT  SCANNER,  BALLOT
MARKING  DEVICE,  BALLOT  BOXES  AND  SECURE STORAGE CONTAINERS, PRIVACY
BOOTHS, ALL ballots and all equipment shall be kept within  such  guard-
rail.
  (e)  Place  the  books, ballots and sample ballots, blanks, stationery
and supplies so that they will be ready and convenient for use.
  (f) Affix or attach to their clothing and cause the clerks, if any, to
affix or attach to their clothing  the  proper  identification  buttons,
badges  or  emblems  issued  by  the  board of elections pursuant to the
provisions of this chapter. The inspectors  and  clerks  shall  wear  no
other buttons, badges or emblems which are similar in design.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD16722-06-0

A. 11353--A                         2

  (g)   See   that  the  [voting]  PRIVACY  booths  CONTAIN  CONSPICUOUS
INSTRUCTIONS ON HOW  TO  PROPERLY  MARK  BALLOTS  AND  THAT  VOTERS  are
[supplied]  PROVIDED  with  [pencils having black lead only] APPROPRIATE
WRITING INSTRUMENTS FOR MARKING BALLOTS.
  (h)  Unlock [the] ALL ballot boxes AND SECURE STORAGE CONTAINERS TO BE
USED TO HOLD ELECTION DAY PAPER BALLOTS, see that they are empty,  allow
them  to  be examined by the watchers present, and lock them up again in
such a manner that the watchers and the persons just outside the  guard-
rail may see that the boxes are empty when re-locked; PROVIDED, HOWEVER,
THE  BALLOT  BOXES  OR  SECURE STORAGE CONTAINERS HOLDING UNUSED BALLOTS
SHALL BE INSPECTED TO CONFIRM THAT ONLY THE NUMBER  OF  UNUSED  ELECTION
DAY PAPER BALLOTS PROVIDED BY THE BOARD OF ELECTIONS ARE CONTAINED THER-
EIN.
  (i)  Inspect  the  [voting  machine] BALLOT SCANNER AND BALLOT MARKING
DEVICE to see that it is in good working  order  [and  has  a  curtain].
INSPECT  THE  PLACEMENT  OF  PRIVACY  BOOTHS  to preserve the secrecy of
voting; inspect the screen of the  [voting  booth]  BALLOT  SCANNER  AND
BALLOT  MARKING  DEVICE; inspect the polling place to make certain there
is no way that anyone can  view  any  VOTING  action  [of]  BY  a  voter
[inside]  AT  the  [voting  machine  or]  BALLOT SCANNER, BALLOT MARKING
DEVICE, OR IN A PRIVACY booth; and affix a conspicuous  notice,  in  the
form  prescribed  by  the state board of elections, in a prominent place
[in] NEAR the [machine or] BALLOT SCANNER  AND  IN  THE  PRIVACY  booth,
instructing  the voter [that,] ON HOW TO PROPERLY MARK A BALLOT in order
to have his OR HER vote counted[, he must leave the voting levers  in  a
down  position  when  he operates the handle to open the curtain].  Such
notice shall be printed in English and such other languages as the board
of elections may determine to be appropriate.
  (j) Announce that the polls are open for voting and the time when  the
polls will close.
  2.  The keys to the [voting machine] BALLOT SCANNER AND BALLOT MARKING
DEVICE shall be delivered to  the  inspectors  at  least  one-half  hour
before  the time set for the opening of the polls, in a sealed envelope,
on which shall be written or printed the BALLOT SCANNER OR BALLOT  MARK-
ING DEVICE SERIAL number and location of the [voting machine, the number
of  the seal, and the number registered on the protective counter] POLL-
ING PLACE, as reported by the voting  machine  custodian.  The  envelope
containing  the  keys  shall  not be opened until at least one inspector
from each of the two parties shall be present in the polling  place  and
shall  have  examined  the  envelope to see that it has not been opened.
Before opening the envelope, [all the] SUCH election [officers]  INSPEC-
TORS  present  shall  examine  the  SERIAL  number  on the [seal on the]
machine, [also the number registered on  the  protective  counter,]  and
shall  see  if  they are the same as the numbers written on the envelope
containing the keys. If found not to agree, the  envelope  must  not  be
opened  until  the voting machine custodian, or other authorized person,
shall have been notified and shall have [presented himself]  ARRIVED  at
the polling place for the purpose of re-examining such machine and shall
certify  that it is properly arranged. If the [numbers] SERIAL NUMBER on
the [seal and protective counter, are] MACHINE IS found  to  agree  with
the  [numbers] NUMBER on the envelope, the inspectors, except as herein-
after provided, shall [open] TURN ON the [doors concealing the  counters
and,  before  the polls are open, each inspector shall carefully examine
every counter and see that it registers zero and allow the  watchers  to
examine  them.  If the machine is provided with a device for printing or
photographing candidate and amendment counters, the door concealing  the

A. 11353--A                         3

counters  shall  not  be  opened  and the] MACHINE. THE inspectors shall
[instead]  carefully  examine  the  printed  [or  photographic]   record
produced  by  the  machine  to see that each counter registers zero, and
shall  allow  watchers  to examine the printed [or photographic] record.
The inspectors shall then sign a certificate showing the delivery of the
keys in a sealed envelope, the SERIAL number on the [seal] MACHINE,  the
number  registered on the protective counter, [if] THAT all the counters
are set at zero [(000), if] AND THAT the public counter is set  at  zero
[(000),  and  if  the ballot labels are properly placed in the machine].
The machine shall remain [locked] SECURED against voting until the polls
are formally opened[,] and shall not be operated except by  voters  [in]
WHEN  voting OR BY ELECTION OFFICIALS UPON THE INSTRUCTIONS OF THE BOARD
OF ELECTIONS.  If any counter is found not to register zero [(000)], the
inspectors of election shall immediately notify the [custodian who shall
if practicable adjust the counters at zero (000), but  if  it  shall  be
impracticable  for the custodian to arrive in time to adjust such count-
ers before the time set for opening  the  polls,  the  inspectors  shall
immediately  make  a  written  statement  of  the designating letter and
number of such counter, together with the number registered thereon, and
shall sign and post the same upon the wall of the polling  place,  where
it  shall  remain throughout election day, and in filling out the return
of canvass they shall subtract such number from the number  then  regis-
tered on such counter] BOARD OF ELECTIONS.
  S  2.  Subdivisions 1-a, 2 and 4 of section 8-104 of the election law,
subdivision 1-a as added by chapter 263 of the laws of 2003, are amended
to read as follows:
  1-a. The election inspectors shall conspicuously post in  the  polling
place  before  the  opening  of  the polls, a voter information posting,
which shall include: (a) the sample ballot and instructions for the  use
of [voting machines] BALLOT SCANNERS AND BALLOT MARKING DEVICES required
pursuant  to  section  7-118 of this chapter; (b) [information regarding
the date of the election] A STATEMENT THAT "TODAY IS ELECTION  DAY"  and
the  hours during which polling places will be open; (c) instructions on
how to cast an affidavit ballot and a concise  statement  of  a  voter's
right  to  such  a ballot; (d) instructions relating to requirements for
voting on [voting machines] BALLOT SCANNERS  by  those  registrants  who
must  provide  identification  pursuant to the federal Help America Vote
Act of 2002; (e) instructions for first-time voters; (f) a voter's  bill
of  rights  describing voter's rights under applicable federal and state
law, including the right of accessibility and alternate language  acces-
sibility;  (g)  information  pertaining  to voting by ELECTION DAY paper
ballot, including information about the consequence of casting an  over-
vote,  steps  to  prevent unintentional undervoting and spoiled ballots;
(h) instructions on how  to  contact  the  appropriate  officials  if  a
voter's right to vote or right to otherwise participate in the electoral
process  has  been  violated; and (i) general information on federal and
state laws regarding prohibitions on  acts  of  fraud  and  misrepresen-
tation.  The  state  board  of  elections  shall  prescribe the form and
content of the voter information posting, which may be comprised of  one
or  more pages, provided each page shall be posted separately. The state
board of elections shall prescribe an official  version  of  such  voter
information  posting  for  every  language which appears on any general,
primary or special election ballot in any election district in the state
and for such other languages as such board, in its  opinion,  determines
is  appropriate.  Such posting shall be used in all jurisdictions, and a
separate posting shall be made by election inspectors for each  language

A. 11353--A                         4

appearing  on  the ballot and for such additional languages as the board
of elections may require. A board of elections may modify or  supplement
the  voter information posting used in its jurisdiction to provide addi-
tional or local information; provided, however, any such modification or
supplementation  shall  be submitted to the state board of elections for
prior approval.
  2. The BALLOT boxes, OTHER SECURE STORAGE CONTAINERS and all  official
ballots shall be kept within the guard-rail, and at least six feet ther-
efrom, from the opening of the polls until the [annnouncement] ANNOUNCE-
MENT  of  the  result  of the canvass and the signing of the inspectors'
returns thereof. No person  shall  be  admitted  within  the  guard-rail
during  such  period  except the election officers, authorized watchers,
persons admitted by the inspectors to preserve order or enforce the law,
[and] voters duly admitted for the purpose of voting AND CHILDREN  UNDER
THE  AGE  OF  SIXTEEN  ACCOMPANYING  THEIR  VOTING PARENTS OR GUARDIANS;
provided, however, that candidates voted for at the polling place may be
within the guard-rail during the canvass.
  4. After a ballot box [shall have] OR OTHER SECURE  STORAGE  CONTAINER
HAS  been  locked  for  the purposes of election, it shall not be opened
until it is opened at the close of the polls for purposes of canvass  OR
BY  ELECTION  OFFICIALS UPON THE INSTRUCTIONS OF THE BOARD OF ELECTIONS.
Each inspector shall be responsible personally for the custody  of  each
ballot  box AND OTHER SECURE STORAGE CONTAINER and its contents from the
time the election begins  until  the  box  OR  CONTAINER  is  delivered,
according to law, to the person entitled to receive it.
  S 3. Section 8-202 of the election law, the section heading as amended
by chapter 373 of the laws of 1978 and subdivision 1 as amended by chap-
ter 91 of the laws of 1992, is amended to read as follows:
  S  8-202.  Board of inspectors; conduct of. 1. The [chairman] CHAIR of
the board of inspectors theretofore appointed shall continue to  act  as
such,  and  the  inspectors shall act as a board, and a majority thereof
shall decide questions.  Two inspectors who are not of  the  same  poli-
tical  faith  shall  have  charge  of  the  registration poll ledgers or
computer generated registration lists, subject to inspection thereof  by
any  inspector and his OR HER participation in the decision of any ques-
tion. Of the inspectors in charge of the registration  poll  ledgers  or
computer generated registration lists, one shall be assigned to the duty
of  comparing  the signatures of voters. Inspectors shall be assigned to
the foregoing duties by majority vote of the board of inspectors, before
the opening of the polls.  Such assignments shall be by lot if a majori-
ty cannot agree. The duties of an inspector  or  clerk  may  be  changed
during the day. If there be clerks, the board of inspectors may direct a
clerk, who is not otherwise engaged, to perform any duty of an inspector
of  the same party, except to vote upon a question to be decided by such
board. Where an oath is required or permitted by  this  article  at  any
election,  any  inspector  may  administer  it.  Where [voting machines]
BALLOT SCANNERS, BALLOT MARKING DEVICES, PRIVACY BOOTHS, BALLOT BOXES OR
OTHER SECURE STORAGE CONTAINERS  are  used,  [one  clerk  or  inspector]
CLERKS  OR  INSPECTORS  shall  attend  [each voting machine] SUCH BALLOT
SCANNERS, BALLOT MARKING DEVICES, PRIVACY BOOTHS, BOXES OR CONTAINERS.
  2. The exterior of [the voting machine]  ANY  BALLOT  SCANNER,  BALLOT
MARKING  DEVICE  AND  PRIVACY  BOOTH and every part of the polling place
shall be in plain view of the  election  inspectors  and  watchers.  The
[voting  machine]  BALLOT  SCANNERS, BALLOT MARKING DEVICES, AND PRIVACY
BOOTHS shall be placed at least four feet from the  table  used  by  the
inspectors in charge of the poll books. The guard-rail shall be at least

A. 11353--A                         5

three  feet  from the machine and the table used by the inspectors[, and
shall have openings to admit voters to and from the machine. The  voting
machine  shall  be  so  located  in  the  polling place that, unless its
construction  requires  otherwise,  the ballot labels on the face of the
machine can be seen plainly by the election  inspectors  and  the  party
watchers when the machine is not in use by voters]. The election inspec-
tors  shall  not  themselves be, or allow any other person to be, in any
position or near any position, that will permit one to see or  ascertain
how  a voter votes, or how he OR SHE has voted nor shall they permit any
other person to be less than three feet from the [machine] BALLOT  SCAN-
NER,  BALLOT  MARKING  DEVICE,  OR PRIVACY BOOTH while [such machine is]
occupied. The election [inspector or clerk] INSPECTORS OR CLERKS attend-
ing the [machine] BALLOT SCANNER,  BALLOT  MARKING  DEVICE,  OR  PRIVACY
BOOTH  shall REGULARLY inspect the face of the [machine after each voter
has cast his vote,] BALLOT SCANNER, BALLOT MARKING DEVICE, OR THE  INTE-
RIOR  OF  THE  PRIVACY BOOTH to see that the [ballot labels are in their
proper places and that  the  machine]  BALLOT  SCANNER,  BALLOT  MARKING
DEVICE,  OR  PRIVACY  BOOTH  has  not been [injured] DAMAGED or tampered
with. During elections  the  door  or  other  covering  of  the  counter
compartment of the machine shall not be unlocked or opened [or the coun-
ters  exposed]  except  by  a member of the board of elections, a voting
machine custodian or any other person upon the specific instructions  of
[a member of] the board of elections.
  S  4.  Section  8-300 of the election law, subdivision 2 as amended by
chapter 158 of the laws of 1996 and subdivision 3 as amended by  chapter
181 of the laws of 2005, is amended to read as follows:
  S  8-300.  Voting; manner of. 1. The inspectors shall admit within the
voting area only two voters at a time for each [voting machine or voting
booth] BALLOT SCANNER, BALLOT MARKING DEVICE, OR PRIVACY BOOTH and shall
ascertain whether each such voter is entitled to vote.  If he OR SHE  is
found  to  be  entitled to vote, he OR SHE shall be [admitted within the
voting machine or booth and be] permitted TO PROCEED TO THE BALLOT SCAN-
NER, BALLOT MARKING DEVICE, OR PRIVACY BOOTH to vote.
  2. The operating of the [voting machine] BALLOT SCANNER by  the  voter
while  voting or the USE OF A PRIVACY BOOTH OR BALLOT MARKING DEVICE FOR
marking [of his] A ballot shall be secret and obscured  from  all  other
persons  except  as  provided  by  this  chapter  in  cases of voting by
assisted voters or in cases of children under the age of sixteen  accom-
panying their voting parents or guardians.
  3. No voter shall remain within a [voting machine] PRIVACY BOOTH OR AT
A  BALLOT  SCANNER  longer than a reasonable amount of time and if he or
she shall refuse to leave after the lapse of such time, he or she  shall
be removed by the inspectors.
  S  5.  Subparagraph  (ii) of paragraph (e) of subdivision 3 of section
8-302 of the election law, as amended by chapter 62 of the laws of 2010,
is amended to read as follows:
  (ii) He or she may swear to and subscribe an affidavit stating that he
or she has duly  registered  to  vote,  the  address  in  such  election
district  from which he or she registered, that he or she remains a duly
qualified voter in such election district, that his or her  registration
poll  record  appears  to  be  lost or misplaced or that his or her name
and/or his or her signature was  omitted  from  the  computer  generated
registration  list or that he or she has moved within the county or city
since he or she last registered, the address from which he  or  she  was
previously  registered  and  the  address  at  which he or she currently
resides, and at a primary election, the party in  which  he  or  she  is

A. 11353--A                         6

enrolled.  The  inspectors  of election shall offer such an affidavit to
each such voter whose residence address is in  such  election  district.
Each  such affidavit shall be in a form prescribed by the state board of
elections,  shall be printed on an envelope of the size and quality used
for an absentee ballot envelope, and  shall  contain  an  acknowledgment
that  the  affiant  understands that any false statement made therein is
perjury punishable according to law. Such form prescribed by  the  state
board  of  elections shall request information required to register such
voter should the county board determine that such voter  is  not  regis-
tered  and  shall  constitute  an  application  to register to vote. The
voter's name and the entries required  shall  then  be  entered  without
delay and without further inquiry in the fourth section of the challenge
report  or  in  the  place provided at the end of the computer generated
registration list, with the notation that the  voter  has  executed  the
affidavit  hereinabove  prescribed, or, if such person's name appears on
the computer generated registration list, the  board  of  elections  may
provide a place to make such entry next to his or her name on such list.
The  voter  shall then, without further inquiry, be permitted to vote an
[emergency] AFFIDAVIT ballot provided for by this chapter.  Such  ballot
shall  thereupon be placed in the envelope containing his or her affida-
vit, and the envelope sealed and returned to the board of  elections  in
the  manner  provided  by  this  chapter for protested official ballots,
including a statement of the number of such ballots.
  S 6. Section 8-312 of the election law, the section heading as amended
and subdivision 6 as added by chapter  464  of  the  laws  of  2009,  is
amended to read as follows:
  S  8-312.  Voting;  ELECTION  DAY  paper ballots, marking and casting,
delivery to voter.  1. On receiving his OR HER ballot, the voter  forth-
with [and without leaving the inclosed space] shall retire alone, unless
he  [be] OR SHE IS entitled to assistance in voting OR IS ACCOMPANIED BY
A CHILD UNDER SIXTEEN YEARS OF AGE, to an  unoccupied  [voting]  PRIVACY
booth  and  mark  his OR HER ballot[,] using a [pen having blue or black
ink or a pencil having black lead] WRITING INSTRUMENT  SUPPLIED  BY  THE
BOARD OF ELECTIONS. He OR SHE shall not occupy a PRIVACY booth more than
five  minutes  if  other  voters  are waiting to occupy it. If the voter
wrongly marks, defaces or tears a ballot [or one of a set  of  ballots],
he  OR  SHE  may successively obtain others, one [set] BALLOT at a time,
not exceeding three [sets] BALLOTS in all, upon returning to the inspec-
tors or clerks each [set of ballots] BALLOT already received.
  2. When the voter shall have [prepared  his]  MARKED  THE  ballot  [or
ballots], he OR SHE shall leave the PRIVACY booth with [each] THE ballot
[folded  so  as  to conceal the face thereof but to show the indorsement
and facsimile of the official signature on the  back,  and  keeping  the
same  so  folded, shall], proceed at once to the [inspector in charge of
the ballot box, and shall offer] BALLOT SCANNER, INSERT such ballot  [or
ballots  to  such]  INTO THE BALLOT SCANNER AND WAIT FOR THE NOTICE THAT
THE BALLOT HAS BEEN SUCCESSFULLY SCANNED. IF NO SUCH NOTICE APPEARS, THE
VOTER SHALL SEEK THE ASSISTANCE OF AN ELECTION inspector. [If the ballot
or ballots are properly folded, and have no mark or tear visible on  the
outside  thereof,  except the printed number on the stub and the printed
indorsement on the back, and if such number is the same as that  entered
in  the  registration poll record, as the number on the stub or stubs of
the official ballot or set  of  ballots  last  delivered  to  him,  such
inspector  shall  receive such ballot or ballots, and after removing the
stub or stubs therefrom in plain view of the voter, and without removing
any other part of the ballot, and without unfolding the ballot or in any

A. 11353--A                         7

way exposing any part of the face of the ballot below  the  stub,  shall
deposit  each ballot in the proper ballot box for the reception of voted
ballots of the kind so received, and the stubs in the box  for  detached
stubs.]
  3.  Upon voting, the voter forthwith shall pass outside the guardrail,
unless he OR SHE is a person authorized to  remain  for  other  purposes
than voting.
  4. When a person shall have received a paper ballot from any clerk, or
inspector,  as  hereinbefore provided, he OR SHE shall be deemed to have
commenced the act of voting,  and  if,  after  receiving  such  official
ballot,  he  OR  SHE  shall  leave  the space inclosed by the guard-rail
before the deposit of his OR HER ballot in  the  ballot  [box]  SCANNER,
BALLOT  BOX OR OTHER SECURE STORAGE CONTAINER, as hereinbefore provided,
he OR SHE shall not be entitled to pass again within the guard-rail  for
the purpose of voting, or to receive any further ballots.
  5.  No  ballot without the official indorsement shall be allowed to be
deposited in the ballot [box except for emergency  ballots  as  provided
for herein] SCANNER OR, WHEN A BALLOT SCANNER IS INOPERABLE OR OTHERWISE
UNABLE  TO  SCAN  THE  BALLOT,  IN  A BALLOT BOX OR OTHER SECURE STORAGE
CONTAINER EXCEPT FOR EMERGENCY BALLOTS AS PROVIDED IN SUBDIVISION TWO OF
SECTION 7-120 OF THIS CHAPTER. No person to whom any ELECTION DAY  paper
ballot  shall  be  delivered shall leave the space within the guard-rail
until after he OR SHE shall  have  SCANNED  THE  BALLOT,  DEPOSITED  THE
BALLOT  IN  A  BALLOT BOX OR OTHER SECURE STORAGE CONTAINER OR delivered
[back all such ballots received by him either] THE BALLOT  BACK  to  the
inspectors or to the clerks.
  6.  [Paper]  ELECTION  DAY  PAPER ballots being used with optical scan
voting systems or intended to be counted by hand pursuant to subdivision
one of section 7-200 of this chapter shall be delivered to the voter  in
a  manner  consistent  with the rules and regulations promulgated by the
state board of elections.
  S 7. This act shall take effect immediately.