Assembly Actions - Lowercase Senate Actions - UPPERCASE |
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Dec 22, 2021 | approval memo.124 signed chap.763 |
Dec 10, 2021 | delivered to governor |
Jun 10, 2021 | returned to senate passed assembly ordered to third reading rules cal.737 substituted for a7931 |
Jun 09, 2021 | referred to election law returned to assembly repassed senate |
Jun 01, 2021 | amended on third reading (t) 1027a |
Jun 01, 2021 | vote reconsidered - restored to third reading returned to senate recalled from assembly |
Jan 11, 2021 | referred to election law delivered to assembly passed senate ordered to third reading cal.8 reported and committed to rules |
Jan 06, 2021 | referred to elections |
senate Bill S1027A
Signed By GovernorRelates to the canvassing of absentee, military and special ballots and ballots cast in affidavit envelopes; repealer
Sponsored By
Michael Gianaris
(D, WF) 12th Senate District
Archive: Last Bill Status - Signed by Governor
- Introduced
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed by Governor
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Jun 9, 2021 - floor Vote
S1027A4320floor43Aye20Nay0Absent0Excused0Abstained-
show floor vote details
Floor Vote: Jun 9, 2021
aye (43)- Addabbo
- Bailey
- Benjamin
- Biaggi
- Breslin
- Brisport
- Brooks
- Brouk
- Comrie
- Cooney
- Felder
- Gaughran
- Gianaris
- Gounardes
- Harckham
- Hinchey
- Hoylman-Sigal
- Jackson
- Kaminsky
- Kaplan
- Kavanagh
- Kennedy
- Krueger
- Liu
- Mannion
- May
- Mayer
- Myrie
- Parker
- Persaud
- Ramos
- Reichlin-Melnick
- Rivera
- Ryan
- Salazar
- Sanders
- Savino
- Sepúlveda
- Serrano
- Skoufis
- Stavisky
- Stewart-Cousins
- Thomas
Jan 11, 2021 - floor Vote
S10274320floor43Aye20Nay0Absent0Excused0Abstained-
show floor vote details
Floor Vote: Jan 11, 2021
aye (43)- Addabbo
- Bailey
- Benjamin
- Biaggi
- Breslin
- Brisport
- Brooks
- Brouk
- Comrie
- Cooney
- Felder
- Gaughran
- Gianaris
- Gounardes
- Harckham
- Hinchey
- Hoylman-Sigal
- Jackson
- Kaminsky
- Kaplan
- Kavanagh
- Kennedy
- Krueger
- Liu
- Mannion
- May
- Mayer
- Myrie
- Parker
- Persaud
- Ramos
- Reichlin-Melnick
- Rivera
- Ryan
- Salazar
- Sanders
- Savino
- Sepúlveda
- Serrano
- Skoufis
- Stavisky
- Stewart-Cousins
- Thomas
Jan 11, 2021 - Elections committee Vote
S102752committee5Aye2Nay0Aye with Reservations0Absent0Excused0AbstainedJan 11, 2021 - Rules committee Vote
S1027147committee14Aye7Nay0Aye with Reservations0Absent0Excused0Abstained -
show floor vote details
Co-Sponsors
Jamaal T. Bailey
(D) 36th Senate District
Alessandra Biaggi
(D, WF) 0 Senate District
Neil D. Breslin
(D, WF) 46th Senate District
Samra G. Brouk
(D, WF) 55th Senate District
- view additional co-sponsors
Leroy Comrie
(D) 14th Senate District
James Gaughran
(D) 0 Senate District
Michelle Hinchey
(D, WF) 41st Senate District
Brad Hoylman-Sigal
(D, WF) 47th Senate District
Robert Jackson
(D, WF) 31st Senate District
Anna M. Kaplan
(D, IP, WF) 0 Senate District
Brian Kavanagh
(D) 27th Senate District
Timothy M. Kennedy
(D, WF) 63rd Senate District
John W. Mannion
(D) 50th Senate District
Rachel May
(D, WF) 48th Senate District
Shelley B. Mayer
(D, WF) 37th Senate District
Kevin S. Parker
(D, WF) 21st Senate District
Elijah Reichlin-Melnick
(D, WF) 0 Senate District
Gustavo Rivera
(D, WF) 33rd Senate District
James Sanders Jr.
(D) 10th Senate District
Diane J. Savino
(D, IP) 0 Senate District
José M. Serrano
(D, WF) 29th Senate District
Toby Ann Stavisky
(D) 11th Senate District
S1027 - Details
S1027 - Sponsor Memo
BILL NUMBER: S1027 Revised 6/1/2021 SPONSOR: GIANARIS TITLE OF BILL: An act to amend the election law, in relation to validating absentee ballots PURPOSE: This bill amends the Election Law to change the process for canvassing absentee, military, special and affidavit ballots in order to obtain the results of an election in a more expedited manner and to assure that every valid vote by a qualified voter is counted. It also amends various other sections of the Election Law to conform to the new canvassing process. SUMMARY OF PROVISIONS: Section one repeals section 9-209 of the election law and replaces it with a new section 9-209. This section sets forth specific processes for
the canvassing of absentee, special, military and affidavit ballots. These processes include the timeframe during which ballots shall be reviewed and the way in which they shall be reviewed. When ballots (not including affidavit ballots) are received, they will be reviewed within 4 days and will be assigned to 1 of 3 statutorily defined categories: valid, defective but curable, and invalid. If the ballot is deemed valid, the ballot is processed by opening the envelope, unfolding the ballot and stacking the ballot face down in a secure box or envelope. The statute specifically defines what type of defect does not need to be cured for the ballot to be valid. If the commissioners or their desig- nees "split" on the question of validity, a presumption of validity applies in favor of the voter and the ballot is processed for canvass- ing. Valid ballots will be scanned on the day before the first day of early voting and again on the last day of early voting. Results will be tabulated beginning at 8:00 p.m. on election night. If the ballot has a defect that is curable, as defined in the statute, the voter gets notice and a chance to cure the defect. If the ballot is invalid, as defined in the statute, the ballot is set aside for post-election review by the board and the candidates. The post-election reviews of ballots shall occur within four business days of the election. Post-election review and canvassing of affidavit ballots shall also occur within four business days of the election and the statute makes clear when affidavit ballots should be counted despite minor technical defects on the affidavit ballot envelope. The board would canvass the valid affidavit ballots. It would also give an affidavit ballot voter an opportunity to cure any question regarding the voter's signature on the envelope. Voters will be able to verify whether their affidavit ballot was counted with the tracking system established for absentee, military and special ballots. Within 4 days of the election, the board would meet to review all invalid absentee, military, special and affidavit ballots with the candidates, who would then have the option of seeking a court order directing the opening of additional ballots. In such a proceeding, the court would be unable to change the process outlined in the new statute and may only change the schedule if a candidate shows by clear and convincing evidence that because of procedural irregularities or other facts he or she will be irreparably harmed absent such relief. No ballot already counted could be uncounted by a court. Section two amends Election Law § 9-211 to require that a central count ballot scanner be audited with ballots from 3 percent of election districts within 3 days of the election and that a similar supplemental audit be done of all ballots received after the initial audit. Section three amends Election Law § 7-122 to require a box labeled "BOE use only" on affirmation ballot envelopes for use in the review of ballot envelopes pursuant to section 9-209. Section four amends Election Law § 8-302 to provide that if a voter's name appears on the registration list with a notation indicating the voter has already voted by an absentee, military or special ballot, the voter may not vote on a voting machine but may vote by affidavit ballot. Section five amends Election Law § 16-106 to authorize a challenge to the board of election's refusal to cast a ballot in the supreme or coun- ty court and to prohibit such court from changing the process or sched- ule contained in Election Law § 9-209. Section six amends Election Law § 17-126 to create an exception to a potential misdemeanor charge for unfolding a ballot before the closing of the polls when processing a ballot pursuant to Election Law § 9-209. Section seven amends Election Law § 17-130 to create an exception to a potential misdemeanor charge for unfolding a ballot before the closing of the polls when processing a ballot pursuant to Election Law § 9-209. Section eight is the effective date. EXISTING LAW: JUSTIFICATION: During the 2020 election, when vastly more absentee ballots were used by voters because of the COVID-19 pandemic, the election results were significantly delayed in many races due to the current canvassing proc- ess and schedule. The law passed last year will once again allow voters to cite COVID-19 as a reason to use an absentee ballot in this year's election. The purpose of the bill is to speed up the counting of absentee, mili- tary, special and affidavit ballots to prevent the long delay in election results that occurred in the 2020 election and to obtain election results earlier than the current law requires. To do so, the bill would require the boards of elections to review absentee, military and special ballots on a rolling basis as they are received prior to, during and after the election. In order to promote quicker election results, the enacted law would also require all central count ballot scanners to be audited within 3 days of the election and it would prohibit a court from changing the process for canvassing ballots, a common occurrence during litigation that delays election results. Any scheduling changes would require a clear and convincing showing by a candidate. A second purpose of the bill is to remove the minor technical mistakes that voters make, which currently can render ballots invalid, so that every qualified voter's ballot is counted. It does so by defining, in statute, what renders a bill invalid, defective but curable, or valid and not needing a cure. If the board of elections commissioners or their designees "split" on the question of validity, a presumption of validity applies in favor of the voter and the ballot is processed for canvass- ing. This bill continues the extensive reform of the election law that has occurred over the last two years to make a more liberalized use of absentee ballots by voters feasible in the future without unduly delay- ing election results. LEGISLATIVE HISTORY: Died in Rules/Died in Election Law (Assembly) FISCAL IMPLICATIONS: None LOCAL FISCAL IMPLICATIONS: None EFFECTIVE DATE: This act shall take effect January 1, 2022 and shall apply to elections held on or after such date; provided, however, that paragraph (h) of subdivision 7 of section 9-209 of the election law, shall take effect January 1, 2023.
S1027 - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 1027 2021-2022 Regular Sessions I N S E N A T E January 6, 2021 ___________ Introduced by Sen. GIANARIS -- read twice and ordered printed, and when printed to be committed to the Committee on Elections AN ACT to amend the election law, in relation to validating absentee ballots THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 1 of section 9-209 of the election law, as amended by chapter 104 of the laws of 2010, is amended to read as follows: 1. (a) The board of elections shall designate itself or such of its employees as it shall deem appropriate as a set of poll clerks to EXAM- INE, cast and canvass such ballots, and fix a time and place for their meeting for such [purpose, provided that such meeting shall be no more than fourteen days after a general or special election and no more than eight days after a primary election at which such ballots are voted] PURPOSES. STARTING FORTY DAYS PRIOR TO THE DAY OF THE ELECTION, SUCH POLL CLERKS SHALL EXAMINE AND DETERMINE THE VALIDITY OF ABSENTEE BALLOT ENVELOPES AS THEY ARE RECEIVED BY THE BOARD OF ELECTIONS. SUCH EXAMINA- TION SHALL OCCUR EVERY BUSINESS DAY PRIOR TO THE DAY OF THE ELECTION, OR, UPON BIPARTISAN AGREEMENT, ON SUCH OTHER SCHEDULE AS DETERMINED BY THE BOARD, PROVIDED THAT THE BOARD POST WHEN SUCH EXAMINATIONS SHALL OCCUR ON ITS WEBSITE. (B) BEGINNING AT THE CLOSE OF POLLS ON THE SECOND SUNDAY OF EARLY VOTING, BOARD OF ELECTIONS EMPLOYEES SHALL BEGIN TO PREPARE AND CANVASS VALID ABSENTEE BALLOTS RECEIVED PRIOR TO SUCH DATE FOR CANVASSING BY HAND OR CENTRAL SCANNER. SUCH PREPARATION SHALL INCLUDE, BUT NOT BE LIMITED TO, REVIEWING THE VOTER HISTORY RECORD FOR EACH VOTER WHO SUBMITTED AN ABSENTEE BALLOT TO REFLECT ANY INSTANCE OF EARLY VOTING BY SUCH VOTERS, OPENING ABSENTEE BALLOT AFFIRMATION ENVELOPES, REMOVING BALLOTS FROM ABSENTEE BALLOT AFFIRMATION ENVELOPES, STACKING ABSENTEE BALLOTS, AND INSERTING BALLOTS INTO A CENTRAL SCANNER OR OTHER VOTE EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted.
LBD03358-02-1 S. 1027 2 COUNTING DEVICE. ANY BALLOTS PREPARED AND CANVASSED DURING THIS PERIOD SHALL BE SECURED IN THE SAME MANNER AS VOTED BALLOTS CAST DURING EARLY VOTING OR ON ELECTION DAY. (C) NO UNOFFICIAL TABULATIONS OF ELECTION RESULTS SHALL BE PRINTED OR VIEWED IN ANY MANNER UNTIL AFTER THE CLOSE OF POLLS ON ELECTION DAY AT WHICH TIME SUCH TABULATIONS SHALL BE ADDED INTO THE ELECTION NIGHT CANVASS TOTALS. (D) BOARD OF ELECTIONS EMPLOYEES SHALL FOLLOW ALL RELEVANT PROVISIONS OF THIS ARTICLE FOR CANVASSING, PROCESSING, RECORDING, AND ANNOUNCING RESULTS OF VOTING AND SECURING BALLOTS, SCANNERS, AND OTHER ELECTION MATERIALS. SUCH CANVASS MAY OCCUR AT THE OFFICES OF THE BOARD OF ELECTIONS, OR SUCH OTHER LOCATION DESIGNATED BY THE BOARD OF ELECTIONS. (E) IN CANVASSING SUCH BALLOTS, THE BOARD SHALL TAKE ALL MEASURES NECESSARY TO ENSURE THE PRIVACY OF VOTERS AND NON-PUBLIC RELEASE OF ELECTION RESULTS PRIOR TO THE CLOSE OF POLLS ON ELECTION DAY. (F) 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 all such 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 inspectors for purposes of this section. [(b)] (G) WATCHERS ARE ENTITLED TO BE PRESENT AT MEETINGS RELATED TO EXAMINING ABSENTEE BALLOT ENVELOPES PRIOR TO THE DAY OF THE ELECTION; PROVIDED, HOWEVER, THAT ANY OBJECTION TO A BOARD DETERMINATION THAT A BALLOT ENVELOPE IS ELIGIBLE TO BE CANVASSED MUST BE MADE AT THE MEETING SUCH DETERMINATION IS MADE; AN OBJECTION SUBSEQUENT TO SUCH MEETING SHALL BE INVALID. At least five days prior to the time fixed for [such] A meeting TO EXAMINE OR CAST AND CANVASS ABSENTEE BALLOTS SUBSEQUENT TO THE DAY OF THE ELECTION, 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 canvass. [(c)] (H) Each such candidate, political party, and independent body shall be entitled to appoint such number of watchers to attend upon each central board of inspectors as such candidate, political party, or inde- pendent body was entitled to appoint at such election in any one election district for which such central board of inspectors is desig- nated to act. § 2. Section 9-209 of the election law is amended by adding two new subdivisions 4 and 5 to read as follows: 4. IF THE BOARD OF ELECTIONS MANUALLY CANVASSES BALLOTS, IT SHALL REVIEW THE BALLOT TO DETERMINE ITS VALIDITY CONSISTENT WITH SECTION 9-112 OF THIS ARTICLE. IN CASES WHERE THE EXPRESS INTENT OF THE VOTER IS UNAMBIGUOUS, ANY STRAY MARKS OR WRITING SHALL NOT BE A BASIS FOR VOIDING AN ABSENTEE BALLOT. IF THE ABSENTEE BALLOTS ARE TABULATED BY AN OPTICAL SCAN VOTING SYSTEM, THEN A REVIEW OF THE ABSENTEE BALLOT SHALL NOT OCCUR. 5. IF AN AFFIDAVIT BALLOT WAS CAST BY A VOTER ON THE DAY OF ELECTION AND IT IS DETERMINED HE OR SHE SUBMITTED AN ABSENTEE BALLOT, SUCH AFFI- DAVIT SHALL BE LEFT ASIDE, UNOPENED. § 3. Clause (A) of subparagraph (i) of paragraph (a) of subdivision 2 of section 9-209 of the election law, as amended by chapter 308 of the laws of 2011, is amended to read as follows: S. 1027 3 (A) If a person whose name is on an envelope as a voter has already voted in person at such election, or if his or her name and residence as stated on the envelope are not on a registration poll record, or the computer generated list of registered voters or the list of special presidential voters, or if there is no name on the envelope, or if the envelope is not sealed, such envelope shall be laid aside unopened; PROVIDED, HOWEVER, THAT IF THE ENVELOPE IS NOT SEALED, SUCH VOTER SHALL RECEIVE NOTICE PURSUANT TO PARAGRAPH (A) OF SUBDIVISION THREE OF THIS SECTION. § 4. Paragraph c of subdivision 3 of section 5-506 of the election law, as amended by section 6 of part XX of chapter 55 of the laws of 2019, is amended to read as follows: c. The computer generated registration list prepared for each election in each election district shall be prepared in a manner which meets or exceeds standards for clarity and speed of production established by the state board of elections, shall be in a form approved by such board, shall include the names of all voters eligible to vote in such election and shall be in alphabetical order, except that, at a primary election, the names of the voters enrolled in each political party may be placed in a separate part of the list or in a separate list, as the board of elections in its discretion, may determine. Such list shall contain, adjacent to each voter's name, or in a space so designated, at least the following: street address, date of birth, party enrollment, year of registration, a computer reproduced facsimile of the voter's signature or an indication that the voter is unable to sign his name, a place for the voter to sign his name at such election and a place for the inspec- tors to mark the voting machine number, the public counter number if any, or the number of any paper ballots given the voter. SUCH LIST SHALL ALSO INCLUDE A NOTATION INDICATING IF SUCH VOTER WAS PROVIDED AN ABSENTEE BALLOT FOR THE APPLICABLE ELECTION; PROVIDED HOWEVER SUCH NOTA- TION SHALL NOT BE REQUIRED FOR ANY LIST BEING UTILIZED DURING EARLY VOTING. THE FORMAT FOR SUCH NOTATION SHALL BE PROMULGATED BY THE STATE BOARD OF ELECTIONS AND USED UNIFORMLY IN COMPUTER GENERATED REGISTRATION LISTS. § 5. Subdivision 1 of section 4-128 of the election law, as amended by section 2 of part XX of chapter 55 of the laws of 2019, is amended to read as follows: 1. The board of elections of each county shall provide the requisite number of official and facsimile ballots, two cards of instruction to voters in the form prescribed by the state board of elections, at least one copy of the instruction booklet for inspectors, a sufficient number of maps, street finders or other descriptions of all of the polling places and election districts within the political subdivision in which the polling place is located to enable the election inspectors and poll clerks to determine the correct election district and polling place for each street address within the political subdivision in which the poll- ing place is located, distance markers, tally sheets and return blanks, pens, pencils, or other appropriate marking devices, envelopes for the ballots of voters whose registration poll records are not in the ledger or whose names are not in the computer generated registration list, ENVELOPES FOR THE ABSENTEE BALLOTS OF VOTERS WHO HAVE ELECTED TO VOTE BY MACHINE TO BE VOIDED, envelopes for returns, identification buttons, badges or emblems for the inspectors and clerks in the form prescribed by the state board of elections and such other articles of stationery as may be necessary for the proper conduct of elections, except that when a town, city or village holds an election not conducted by the board of S. 1027 4 elections, the clerk of such town, city or village, shall provide such official and facsimile ballots and the necessary blanks, supplies and stationery for such election. § 6. Section 8-302 of the election law is amended by adding two new subdivisions 2-b and 3-d to read as follows: 2-B. IF ON ELECTION DAY A VOTER'S NAME APPEARS IN THE LEDGER OR COMPUTER GENERATED REGISTRATION LIST WITH A NOTATION INDICATING THAT THE VOTER WAS PROVIDED AN ABSENTEE BALLOT, SUCH VOTER SHALL BE PERMITTED TO CAST HIS OR HER VOTE ON THE VOTING MACHINE IF THE VOTER SURRENDERS HIS OR HER ABSENTEE BALLOT AND AFFIRMATION OATH ENVELOPE TO THE INSPECTOR AND SUCH ABSENTEE BALLOT IS MARKED "VOTED IN PERSON" AND PLACED BY THE INSPECTOR IN AN ENVELOPE DESIGNATED FOR THIS PURPOSE. 3-D. IF ON ELECTION DAY A VOTER'S NAME APPEARS IN THE LEDGER OR COMPUTER GENERATED REGISTRATION LIST WITH A NOTATION INDICATING THAT THE VOTER WAS PROVIDED AN ABSENTEE BALLOT AND SUCH VOTER IS UNABLE TO SURRENDER HIS OR HER BALLOT AND AFFIRMATION OATH ENVELOPE PURSUANT TO SUBDIVISION TWO-B OF THIS SECTION, SUCH VOTER SHALL ONLY BE ENTITLED TO VOTE BY AFFIDAVIT BALLOT UNLESS A COURT ORDER PROVIDES OTHERWISE. § 7. Section 16-106 of the election law is amended by adding a new subdivision 4-a to read as follows: 4-A. IN ORDER TO OBTAIN ANY ORDER FOR TEMPORARY OR PRELIMINARY INJUNC- TIVE RELIEF OR AN IMPOUND ORDER HALTING OR ALTERING THE CANVASSING OF ABSENTEE OR AFFIDAVIT BALLOTS AS PROVIDED FOR IN SECTION 9-209 OF THIS CHAPTER, IN ADDITION TO THE CRITERIA IN ARTICLE SIXTY-THREE OF THE CIVIL PRACTICE LAW AND RULES, THE PETITIONER MUST SHOW, BY CLEAR AND CONVINC- ING EVIDENCE, THAT, BECAUSE OF PROCEDURAL IRREGULARITIES OR OTHER FACTS ARISING DURING THE ELECTION, THE PETITIONER WILL BE IRREPARABLY HARMED ABSENT SUCH RELIEF. FOR 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. § 8. Section 16-102 of the election law is amended by adding a new subdivision 3-a to read as follows: 3-A. IN ORDER TO OBTAIN ANY ORDER FOR TEMPORARY OR PRELIMINARY INJUNC- TIVE RELIEF OR AN IMPOUND ORDER HALTING OR ALTERING THE CANVASSING OF ABSENTEE OR AFFIDAVIT BALLOTS AS PROVIDED FOR IN SECTION 9-209 OF THIS CHAPTER, IN ADDITION TO THE CRITERIA IN ARTICLE SIXTY-THREE OF THE CIVIL PRACTICE LAW AND RULES, THE PETITIONER MUST SHOW, BY CLEAR AND CONVINC- ING EVIDENCE, THAT, BECAUSE OF PROCEDURAL IRREGULARITIES OR OTHER FACTS ARISING DURING THE ELECTION, THE PETITIONER WILL BE IRREPARABLY HARMED ABSENT SUCH RELIEF. FOR 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. § 9. Subdivision 5 of section 16-106 of the election law, as amended by chapter 359 of the laws of 1989, is amended to read as follows: 5. A proceeding under subdivisions one and three of this section must be instituted within twenty days and under subdivision two OF THIS SECTION, 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; PROVIDED, HOWEVER, THAT ANY PROCEED- ING SEEKING TO REVERSE A DETERMINATION OF A BOARD OF ELECTIONS THAT RESULTS IN VALIDATING AN ABSENTEE BALLOT APPLICATION SHALL BE INSTITUTED WITHIN TWO DAYS OF SUCH DETERMINATION, WITH THE VOTER IN QUESTION BEING NAMED AS A NECESSARY PARTY; PROVIDED FURTHER THAT ANY PROCEEDING CHAL- S. 1027 5 LENGING THE CANVASSING OF AN ABSENTEE BALLOT DUE TO AN ALLEGED DEFECT ON THE AFFIRMATION ENVELOPE MUST NAME THE VOTER AS A NECESSARY PARTY. § 10. The state board of elections shall promulgate rules or regu- lations necessary for the implementation of these provisions including, but not be limited to, (i) ensuring that voters who submitted an absen- tee ballot and thereafter voted in person during the early voting period not have their absentee ballot canvassed in the election; and (ii) ballots are counted in an efficient and fair process that respects the privacy of the voter. § 11. Subdivision 20 of section 17-130 of the election law is amended to read as follows: 20. Intentionally opens an absentee voter's envelope or examines the contents thereof after the receipt of the envelope by the board of elections and before the close of the polls at the election EXCEPT AS PROVIDED FOR IN SECTION 9-209 OF THIS CHAPTER; or, § 12. This act shall take effect on the ninetieth day after it shall have become a law.
Co-Sponsors
Jamaal T. Bailey
(D) 36th Senate District
Alessandra Biaggi
(D, WF) 0 Senate District
Neil D. Breslin
(D, WF) 46th Senate District
Samra G. Brouk
(D, WF) 55th Senate District
- view additional co-sponsors
Leroy Comrie
(D) 14th Senate District
James Gaughran
(D) 0 Senate District
Michelle Hinchey
(D, WF) 41st Senate District
Brad Hoylman-Sigal
(D, WF) 47th Senate District
Robert Jackson
(D, WF) 31st Senate District
Anna M. Kaplan
(D, IP, WF) 0 Senate District
Brian Kavanagh
(D) 27th Senate District
Timothy M. Kennedy
(D, WF) 63rd Senate District
John W. Mannion
(D) 50th Senate District
Rachel May
(D, WF) 48th Senate District
Shelley B. Mayer
(D, WF) 37th Senate District
Kevin S. Parker
(D, WF) 21st Senate District
Elijah Reichlin-Melnick
(D, WF) 0 Senate District
Gustavo Rivera
(D, WF) 33rd Senate District
James Sanders Jr.
(D) 10th Senate District
Diane J. Savino
(D, IP) 0 Senate District
José M. Serrano
(D, WF) 29th Senate District
Toby Ann Stavisky
(D) 11th Senate District
S1027A (ACTIVE) - Details
S1027A (ACTIVE) - Sponsor Memo
BILL NUMBER: S1027A REVISED 06/08/2021 SPONSOR: GIANARIS TITLE OF BILL: An act to amend the election law, in relation to the canvassing of absentee, military and special ballots and ballots cast in affidavit envelopes; and to repeal certain provisions of such law related thereto PURPOSE: This bill amends the Election Law to change the process for canvassing absentee, military, special and affidavit ballots in order to obtain the results of an election in a more expedited manner and to assure that every valid vote by a qualified voter is counted. It also amends various other sections of the Election Law to conform to the new canvassing process. SUMMARY OF PROVISIONS: Section one repeals section 9-209 of the election law and replaces it
with a new section 9-209. This section sets forth specific processes for the canvassing of absentee, special, military and affidavit ballots. These processes include the timeframe during which ballots shall be reviewed and the way in which they shall be reviewed. When ballots (not including affidavit ballots) are received, they will be reviewed within 4 days and will be assigned to 1 of 3 statutorily defined categories: valid, defective but curable, and invalid. If the ballot is deemed valid, the ballot is processed by opening the envelope, unfolding the ballot and stacking the ballot face down in a secure box or envelope. The statute specifically defines what type of defect does not need to be cured for the ballot to be valid. If the commissioners or their desig- nees "split" on the question of validity, a presumption of validity applies in favor of the voter and the ballot is processed for canvass- ing. Valid ballots will be scanned on the day before the first day of early voting and again on the last day of early voting. Results will be tabulated beginning at 8:00 p.m. on election night. If the ballot has a defect that is curable, as defined in the statute, the voter gets notice and a chance to cure the defect. If the ballot is invalid, as defined in the statute, the ballot is set aside for post-election review by the board and the candidates. The post-election reviews of ballots shall occur within four business days of the election. Post-election review and canvassing of affidavit ballots shall also occur within four business days of the election and the statute makes clear when affidavit ballots should be counted despite minor technical defects on the affidavit ballot envelope. The board would canvass the valid affidavit ballots. It would also give an affidavit ballot voter an opportunity to cure any question regarding the voter's signature on the envelope. Voters will be able to verify whether their affidavit ballot was counted with the tracking system established for absentee, military and special ballots. Within 4 days of the election, the board would meet to review all invalid absentee, military, special and affidavit ballots with the candidates, who would then have the option of seeking a court order directing the opening of additional ballots. In such a proceeding, the court would be unable to change the process outlined in the new statute and may only change the schedule if a candidate shows by clear and convincing evidence that because of procedural irregularities or other facts he or she will be irreparably harmed absent such relief. No ballot already counted could be uncounted by a court. Section two amends Election Law § 9-211 to require that a central count ballot scanner be audited with ballots from 3 percent of election districts within 3 days of the election and that a similar supplemental audit be done of all ballots received after the initial audit. Section three amends Election Law § 7-122 to require a box labeled "BOE use only" on affirmation ballot envelopes for use in the review of ballot envelopes pursuant to section 9-209. Section four amends Election Law § 8-302 to provide that if a voter's name appears on the registration list with a notation indicating the board of elections has issued an absentee, military or special ballot, the voter may not vote on a voting machine but may vote by affidavit ballot. Section five amends Election Law § 16-106 to authorize a challenge to the board of election's refusal to cast a ballot in the supreme or coun- ty court and to prohibit such court from changing the process or sched- ule contained in Election Law § 9-209. Section six amends Election Law § 17-126 to create an exception to a potential misdemeanor charge for unfolding a ballot before the closing of the polls when processing a ballot pursuant to Election Law § 9-209. Section seven amends Election Law § 17-130 to create an exception to a potential misdemeanor charge for unfolding a ballot before the closing of the polls when processing a ballot pursuant to Election Law § 9-209. Section eight is the effective date. EXISTING LAW: JUSTIFICATION: During the 2020 election, when vastly more absentee ballots were used by voters because of the COVID-19 pandemic, the election results were significantly delayed in many races due to the current canvassing proc- ess and schedule. The law passed last year will once again allow voters to cite COVID-19 as a reason to use an absentee ballot in this year's election. The purpose of the bill is to speed up the counting of absentee, mili- tary, special and affidavit ballots to prevent the long delay in election results that occurred in the 2020 election and to obtain election results earlier than the current law requires. To do so, the bill would require the boards of elections to review absentee, military and special ballots on a rolling basis as they are received prior to, during and after the election. In order to promote quicker election results, the enacted law would also require all central count ballot scanners to be audited within 3 days of the election and it would prohibit a court from changing the process for canvassing ballots, a common occurrence during litigation that delays election results. Any scheduling changes would require a clear and convincing showing by a candidate. A second purpose of the bill is to remove the minor technical mistakes that voters make, which currently can render ballots invalid, so that every qualified voter's ballot is counted. It does so by defining, in statute, what renders a bill invalid, defective but curable, or valid and not needing a cure. If the board of elections commissioners or their designees "split" on the question of validity, a presumption of validity applies in favor of the voter and the ballot is processed for canvass- ing. This bill continues the extensive reform of the election law that has occurred over the last two years to make a more liberalized use of absentee ballots by voters feasible in the future without unduly delay- ing election results. LEGISLATIVE HISTORY: Died in Rules/Died in Election Law (Assembly) FISCAL IMPLICATIONS: None LOCAL FISCAL IMPLICATIONS: None EFFECTIVE DATE: This act shall take effect January 1, 2022 and shall apply to elections held on or after such date; provided, however, that paragraph (h) of subdivision 7 of section 9-209 of the election law, shall take effect January 1, 2023.
S1027A (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 1027--A Cal. No. 8 2021-2022 Regular Sessions I N S E N A T E January 6, 2021 ___________ Introduced by Sens. GIANARIS, BAILEY, BIAGGI, BRESLIN, BROUK, COMRIE, GAUGHRAN, HINCHEY, HOYLMAN, JACKSON, KAPLAN, KAVANAGH, KENNEDY, MANN- ION, MAY, MAYER, PARKER, REICHLIN-MELNICK, RIVERA, SANDERS, SAVINO, SERRANO, STAVISKY -- read twice and ordered printed, and when printed to be committed to the Committee on Elections -- reported favorably from said committee and committed to the Committee on Rules -- reported favorably from said committee, ordered to a third reading, passed by Senate and delivered to the Assembly, recalled, vote recon- sidered, restored to third reading, amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the election law, in relation to the canvassing of absentee, military and special ballots and ballots cast in affidavit envelopes; and to repeal certain provisions of such law related there- to THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 9-209 of the election law is REPEALED and a new section 9-209 is added to read as follows: § 9-209. CANVASS OF 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 ANY ABSENTEE, MILITARY, SPECIAL PRESIDENTIAL, SPECIAL FEDERAL OR OTHER SPECIAL BALLOTS AND ANY BALLOTS CAST IN AFFIDAVIT ENVELOPES. 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 ABSENTEE, MILITARY OR SPECIAL BALLOT, THE BOARD OF ELECTIONS SHALL EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted. LBD03358-04-1 S. 1027--A 2 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 ABSENTEE, MILITARY AND SPECIAL BALLOT ENVELOPES. WITHIN FOUR DAYS OF THE RECEIPT OF AN 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 SUBSE- QUENTLY 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 COMPU- TER-GENERATED LIST OF REGISTERED VOTERS, OR THE LIST OF SPECIAL PRESI- DENTIAL 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 WITH- DRAWN, 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. S. 1027--A 3 (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 REGIS- TRATION 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; OR (VI) CONTAINS THE SIGNATURE OF SOMEONE OTHER THAN THE VOTER AND NOT OF THE VOTER. (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. 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. S. 1027--A 4 (E) SUCH CURE AFFIRMATION SHALL BE FILED WITH THE BOARD NO LATER THAN SEVEN BUSINESS DAYS AFTER THE BOARD'S MAILING OF SUCH CURABLE REJECTION NOTICE OR THE DAY BEFORE THE ELECTION, WHICHEVER IS LATER. 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 POST- MARKED 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 DESIG- NATED 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 TRANSMIT- TAL; OR (VI) 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 INFOR- MATION, 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 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 CANVAS- SERS 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 ABSENTEE, MILITARY OR SPECIAL FEDERAL BALLOT WAS RECEIVED FROM THE 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 S. 1027--A 5 FOLLOWING THE DAY OF ELECTION OR SEVEN DAYS AFTER A PRIMARY ELECTION; AND (IV) THE 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 COUN- TRY'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 INDEPEND- ENT 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 WRIT- ING 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 CANDI- DATE 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 AND FOUR OF THIS SECTION. 6. CASTING AND CANVASSING OF 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 SCAN- NERS 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 REGU- LATIONS OF THE STATE BOARD OF ELECTIONS AND SHALL BE FILED WITH THE S. 1027--A 6 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 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 ABSENTEE BALLOTS FROM A VOTER WHO ALSO CAST AN AFFIDAVIT BALLOT AT A POLL SITE, THE LAST SUCH TIMELY ABSENTEE BALLOT RECEIVED SHALL BE CANVASSED AND THE AFFIDAVIT BALLOT SHALL BE SET ASIDE UNOPENED; AND PROVIDED FURTHER, IF A VOTER WAS ISSUED AN ABSENTEE BALLOT AND VOTES IN PERSON VIA AN AFFIDAVIT BALLOT AND THE BOARD DOES NOT RECEIVE SUCH ABSENTEE BALLOT, THE AFFIDA- VIT 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 REGIS- TERING; (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; AND (VII) WHO ARE INCORRECTLY IDENTIFIED AS HAVING ALREADY VOTED. S. 1027--A 7 (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 THE CORRECT POLLING PLACE, REGARDLESS OF THE FACT THAT THE VOTER MAY HAVE APPEARED IN THE INCORRECT ELECTION DISTRICT AND REGARDLESS OF WHETHER THE VOTER'S NAME WAS IN THE REGISTRATION POLL RECORD. (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 CHAP- TER 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) 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 TWENTY-FIVE 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) 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. (J) 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' DETERMI- NATION 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. (K) THE BOARD OF ELECTIONS SHALL ENTER INFORMATION INTO THE BALLOT TRACKING SYSTEM, AS DEFINED IN SECTION 8-414 OF THIS CHAPTER, TO ALLOW A VOTER WHO CAST A BALLOT IN AN AFFIDAVIT ENVELOPE TO DETERMINE IF THE VOTE WAS COUNTED. 8. POST-ELECTION REVIEW OF INVALID 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 ABSENTEE, MILITARY AND SPECIAL BALLOTS DETER MINED TO BE INVALID PURSUANT TO PARAGRAPH (A) OF SUBDIVISION TWO OF THIS SECTION, BALLOT ENVELOPES THAT WERE RETURNED TO THE BOARD AS UNDELIVERA- S. 1027--A 8 BLE, 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 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 REGU- LATIONS 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. § 2. Section 9-211 of the election law, as amended by chapter 515 of the laws of 2015, subdivision 1 as amended by chapter 5 of the laws of 2019, is amended to read as follows: § 9-211. Audit of voter verifiable audit records. 1. Within fifteen days after each general or special election, within thirteen days after every primary election, and within seven days after every village election conducted by the board of elections, the board of elections or a bipartisan committee appointed by such board shall audit the voter verifiable audit records from three percent of voting machines or systems within the jurisdiction of such board. Such audits may be performed manually or via the use of any automated tool authorized for such use by the state board of elections which is independent from the voting system it is being used to audit. Voting machines or systems shall be selected for audit through a random, manual process. At least five days prior to the time fixed for such selection process, the board of elections shall send notice by first class mail to each candidate, political party and independent body entitled to have had watchers pres- ent at the polls in any election district in such board's jurisdiction. Such notice shall state the time and place fixed for such random selection process. The audit shall be conducted in the same manner, to the extent applicable, as a canvass of paper ballots. Each candidate, political party or independent body entitled to appoint watchers to S. 1027--A 9 attend at a polling place shall be entitled to appoint such number of watchers to observe the audit. 2. WITHIN THREE DAYS OF ANY ELECTION, THE BOARD OF ELECTIONS OR A BIPARTISAN COMMITTEE APPOINTED BY SUCH BOARD SHALL AUDIT THE CENTRAL COUNT BALLOT SCANNERS BY AUDITING THE BALLOTS FROM THREE PERCENT OF ELECTION DISTRICTS THAT WERE TABULATED BY SUCH SCANNERS WITHIN THE JURISDICTION OF SUCH BOARD BY THAT TIME. ALL PROVISIONS OF THIS SECTION SHALL OTHERWISE APPLY TO SUCH AUDIT. TO THE EXTENT ADDITIONAL BALLOTS ARE TABULATED THROUGH CENTRAL COUNT BALLOT SCANNERS AFTER THE INITIAL AUDIT, THREE PERCENT OF ELECTION DISTRICTS SHALL THEREAFTER BE AUDITED AS TO THE ADDITIONAL BALLOTS TABULATED. THE CERTIFICATION OF THE CANVASS SHALL NOT AWAIT THE COMPLETION OF SUCH ADDITIONAL AUDIT; PROVIDED, HOWEVER, IF UPON THE COMPLETION OF SUCH ADDITIONAL AUDIT THE CRITERIA ARE MET FOR THE RESULTS OF THE AUDIT TO REPLACE THE CANVASS THEN THE BOARD OF CANVASSERS SHALL FORTHWITH RECONVENE AND ADJUST THE CANVASS AS REQUIRED. 3. The audit tallies for each voting machine or system shall be compared to the tallies recorded by such voting machine or system, and a report shall be made of such comparison which shall be filed in the office of the state board of elections. [3.] 4. The state board of elections shall, in accordance with subdi- vision four of section 3-100 of this chapter, promulgate regulations establishing a uniform statewide standard to be used by boards of elections to determine when a discrepancy between the audit tallies and the voting machine or system tallies shall require a further voter veri- fiable record audit of additional voting machines or systems or a complete audit of all machines or systems within the jurisdiction of a board of elections. Any board of elections shall be empowered to order that any such audit shall be conducted whenever any such discrepancy exists. [4.] 5. If a complete audit shall be conducted, the results of such audit shall be used by the canvassing board in making the statement of canvass and determinations of persons elected and propositions rejected or approved. The results of a partial voter verifiable record audit shall not be used in lieu of voting machine or system tallies. [5.] 6. Notwithstanding subdivision four of this section, if a voting machine or system is found to have failed to record votes in a manner indicating an operational failure, the board of canvassers shall use the voter verifiable audit records to determine the votes cast on such machine or system, provided such records were not also impaired by the operational failure of the voting machine or system. § 3. Subdivision 5 of section 7-122 of the election law, as amended by chapter 411 of the laws of 2019, is amended to read as follows: 5. There shall also be a place for two board of elections staff members or inspectors of opposite political parties to indicate, by placing their initials thereon, that they have checked and marked the voter's poll record AND A BOX LABELED "BOE USE ONLY" FOR NOTATIONS REQUIRED WHEN THE BOARD OF ELECTIONS REVIEWS AFFIRMATION BALLOT ENVEL- OPES PURSUANT TO SECTION 9-209 OF THIS CHAPTER. § 4. Subdivision 2-a of section 8-302 of the election law is renum- bered subdivision 2-b and a new subdivision 2-a is added to read as follows: 2-A. IF A VOTER'S NAME APPEARS IN THE LEDGER OR COMPUTER GENERATED REGISTRATION LIST WITH A NOTATION INDICATING THAT THE BOARD OF ELECTIONS HAS ISSUED THE VOTER AN ABSENTEE, MILITARY OR SPECIAL BALLOT, SUCH VOTER S. 1027--A 10 SHALL NOT BE PERMITTED TO VOTE ON A VOTING MACHINE AT AN EARLY VOTING SITE OR ON ELECTION DAY BUT MAY VOTE BY AFFIDAVIT BALLOT. § 5. Subdivisions 1, 4 and 5 of section 16-106 of the election law, subdivision 1 as amended by chapter 659 of the laws of 1994, subdivision 5 as amended by chapter 359 of the laws of 1989, are amended to read as follows: 1. The [casting or canvassing or] POST-ELECTION refusal to cast: (A) challenged ballots, blank ballots, OR void [or canvass] BALLOTS; (B) absentee, military, special [federal], OR federal write-in [or] BALLOTS; (C) emergency ballots; and (D) ballots voted in affidavit envelopes [by persons whose registration poll records were not in the ledger or whose names were not on the computer generated registration list on the day of election or voters in inactive status, voters who moved to a new address in the city or county or after they registered or voters who claimed to be enrolled in a party other than that shown on their registration poll record or on the computer generated registration list and the original applications for a military, special federal, federal write-in, emergen- cy or absentee voter's ballot] may be contested in a proceeding insti- tuted 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 inspec- tors 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. 4. The court SHALL ENSURE THE STRICT AND UNIFORM APPLICATION OF THE ELECTION LAW AND SHALL NOT PERMIT OR REQUIRE THE ALTERING OF THE SCHED- ULE 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 [law] 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 SCHED- ULE, 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 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 thir- ty days after the election or alleged erroneous statement or determi- nation 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. S. 1027--A 11 § 6. Subdivision 4 of section 17-126 of the election law is amended to read as follows: 4. Before the closing of the polls, unfolds a ballot that a voter has prepared for voting, EXCEPT AS PROVIDED IN SECTION 9-209 OF THIS CHAP- TER, is guilty of a misdemeanor. § 7. Subdivisions 18, 20 and 21 of section 17-130 of the election law are amended to read as follows: 18. Not being lawfully authorized, makes or has in his possession a key to a voting [maching] MACHINE which has been adopted and will be used in elections; or, 20. Intentionally opens [an absentee] A voter's BALLOT envelope or examines the contents thereof after the receipt of the envelope by the board of elections and before the close of the polls at the election EXCEPT AS PROVIDED IN SECTION 9-209 OF THIS CHAPTER; or, 21. [Wilfully] WILLFULLY disobeys any lawful command of the board of inspectors, or any member thereof; or, § 8. This act shall take effect January 1, 2022 and shall apply to elections held on or after such date; provided, however, that paragraph (h) of subdivision 7 of section 9-209 of the election law, as added by section one of this act, shall take effect January 1, 2023.
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