Legislation

Search OpenLegislation Statutes
This entry was published on 2022-01-07
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 9-209
Canvass of absentee, military and special ballots, and ballots cast in affidavit envelopes
Election (ELN) CHAPTER 17, ARTICLE 9, TITLE 2
§ 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
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
subsequently received ballot envelope shall be set aside unopened.

(c) If such person is found to be registered, the central board of
canvassers shall compare the signature, if any, on each ballot envelope
with the signature, if any, on the registration poll record, the
computer-generated list of registered voters, or the list of special
presidential voters, of the person of the same name who registered from
the same address. If the signatures are found to correspond, such
central board of canvassers shall certify thereto in a manner provided
by the state board of elections.

(d) If such person is found to be registered and has requested a
ballot, the ballot envelope shall be opened, the ballot or ballots
withdrawn, unfolded, stacked face down and deposited in a secure ballot
box or envelope. Upon such processing of the ballot, the voter's record
shall be updated with a notation that indicates that the voter has
already voted in such election. The board of elections shall adopt
procedures, consistent with regulations of the state board of elections,
to prevent voters from voting more than once and to secure ballots and
prevent public release of election results prior to election day. Such
procedures shall be filed with the state board of elections at least
ninety days before they shall be effective.

(e) In the case of a primary election, the ballot shall be deposited
in the box only if the ballot is of the party with which the voter is
enrolled according to the entry on the back of his or her registration
poll record or in the computer-generated registration list; if not, the
ballot shall be rejected without inspection or unfolding and shall be
returned to the ballot envelope which shall be endorsed "not enrolled".

(f) If the central board of canvassers determines that a person was
entitled to vote at such election it shall prepare such ballot to be
stacked face down and deposited in a secure ballot box or envelope
consistent with paragraph (d) of this subdivision if such board finds
that ministerial error by the board of elections or any of its employees
caused such ballot envelope not to be valid on its face.

(g) If the central board of canvassers splits as to whether a ballot
is valid, it shall prepare such ballot to be cast and canvassed pursuant
to this subdivision.

(h) As each ballot envelope is opened, if one or more of the different
kinds of ballots to be voted at the election are not found therein, the
central board of canvassers, shall make a memorandum showing what ballot
or ballots are missing. If a ballot envelope shall contain more than one
ballot for the same offices, all the ballots in such ballot envelope
shall be rejected. When the review of such ballots shall have been
completed, the central board of canvassers shall ascertain the number of
such ballots of each kind which have been deposited in the ballot box by
deducting from the number of ballot envelopes opened with the number of
missing ballots, and shall make a return thereof. The number of voters'
ballots deposited in the ballot box shall be added to the number of
other ballots deposited in the ballot box, in order to determine the
number of all ballots of each kind to be accounted for in the ballot
box.

3. Curing ballots. (a) At the time a ballot affirmation envelope is
reviewed pursuant to subdivision two of this section, the board of
elections shall determine whether it has a curable defect.

(b) A curable defect includes instances where the ballot envelope: (i)
is unsigned; (ii) has a signature that does not correspond to the
registration signature; (iii) has no required witness to a mark; (iv) is
returned without a ballot affirmation envelope in the return envelope;
(v) has a ballot affirmation envelope that is signed by the person that
has provided assistance to the voter but is not signed or marked by the
voter; 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.

(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
postmarked on or prior to election day or is otherwise received timely
by the board of elections; (ii) the voter signed or marked the ballot
affirmation envelope at a place on the envelope other than the
designated signature line; (iii) a voter used a combination of ink (of
any color) or pencil to complete the ballot envelope; (iv) papers found
in the ballot envelope with the ballot are materials from the board of
elections, such as instructions or an application sent by the board of
elections; (v) an extrinsic mark or tear on the ballot envelope appears
to be there as a result of the ordinary course of mailing or
transmittal; 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
information, and notify the voter of other options for voting, and, if
time permits, provide the voter with a new ballot.

(i) If a ballot affirmation envelope is received by the board of
elections prior to the election and is found to be completely unsealed
and thus invalid, the board shall notify the voter by mail, sent within
three business days of such determination, and by either electronic mail
or telephone, if such information is available to the board in the
voter's registration information, and notify the voter of other options
for voting, and, if time permits, provide the voter with a new ballot.

4. Review of federal write-in absentee ballots. (a) Such central board
of canvassers shall review any federal write-in absentee ballots validly
cast by an absentee voter, a military voter or a special federal voter
for the offices of president and vice-president, United States senator
and representative in congress. Such central board of canvassers shall
also review any federal write-in absentee ballots validly cast by a
military voter for all questions or proposals, public offices or party
positions for which a military voter is otherwise eligible to vote as
provided in section 10-104 of this chapter.

(b) Federal write-in absentee ballots shall be deemed valid only if:
(i) an application for an 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
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
country's postal service; (ii) a dated endorsement of receipt by another
agency of the United States government; or (iii) if cast by a military
voter, the signature and date of the voter and one witness thereto with
a date which is ascertained to be not later than the day of the
election.

(d) If such a federal write-in absentee ballot contains the name of a
person or persons in the space provided for a vote for any office, such
ballot shall be counted as a vote for such person or persons. A vote for
a person who is the candidate of a party or independent body either for
president or vice-president shall be deemed to be a vote for both the
candidates of such party or independent body for such offices. If such a
ballot contains the name of a party or independent body in the space
provided for a vote for any office, such ballot shall be deemed to be a
vote for the candidate or candidates, if any, of such party or
independent body for such office. In the case of the offices of
president and vice-president a vote cast for a candidate, either
directly or by writing in the name of a party or independent body, shall
also be deemed to be votes for the electors supporting such candidate.
Any abbreviation, misspelling or other minor variation in the form of
the name of a candidate or a party or independent body shall be
disregarded in determining the validity of the ballot, if the voter's
intention can be ascertained.

5. Nothing in this section prohibits a representative of a candidate,
political party, or independent body entitled to have watchers present
at the polls in any election district in the board's jurisdiction from
observing, without objection, the review of ballot envelopes required by
subdivisions two, three 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
scanners used for such purpose shall be secured, and no tabulation of
the results shall occur until one hour before the close of the polls on
election day. Any ballots scanned during this period shall be secured in
the same manner as voted ballots cast during early voting or on election
day. The board of elections shall adopt procedures to prevent the public
release of election results prior to the close of polls on election day
and such procedures shall be consistent with the regulations of the
state board of elections and shall be filed with the state board of
elections at least ninety days before they shall be effective;

(iii) Any valid ballots that cannot be cast on a scanner shall be held
inviolate and unexamined and shall be duly secured until after the close
of polls on election day when such ballots shall be examined and
canvassed in a manner consistent with subdivision two of section 9-110
of this article.

(c) After the close of the polls on the last day of early voting, the
central board of canvassers shall scan all valid ballots received and
prepared pursuant to this section, and not previously scanned on the day
before the first day of early voting, in the same manner as provided in
paragraph (b) of this subdivision using the same or different scanners.

(d) In casting and canvassing such ballots, the board shall take all
measures necessary to ensure the privacy of voters.

(e) The board of elections may begin to obtain tabulated results for
all ballots previously scanned, as required by this subdivision, one
hour before the scheduled close of polls on election day; provided,
however, no unofficial tabulations of election results shall be publicly
announced or released in any manner until after the close of polls on
election day at which time such tabulations shall be added into the
election night vote totals.

(f) Upon completing the casting and canvassing of any remaining valid
ballots as hereinabove provided for any election district, the central
board of canvassers shall thereupon, as nearly as practicable in the
manner provided in this article for 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
affidavit ballot shall be canvassed if the voter is otherwise qualified
to vote in such election.

(b) Affidavit ballots are valid when cast at a polling site permitted
by law by qualified voters: (i) who moved within the state after
registering; (ii) who are in inactive status; (iii) whose registration
was incorrectly transferred to another address even though they did not
move; (iv) whose registration poll records were missing on the day of
such election; (v) who have not had their identity previously verified;
(vi) whose registration poll records did not show them to be enrolled in
the party in which they are enrolled; and (vii) who are incorrectly
identified as having already voted.

(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
chapter and signed the affidavit ballot, the board shall cast and
canvass such affidavit ballot if the voter is otherwise qualified to
vote in such election.

(f) If the central board of canvassers determines that a person was
entitled to vote at such election, the board shall cast and canvass such
affidavit ballot if such board finds that the voter substantially
complied with the requirements of this chapter. For purposes of this
paragraph, "substantially complied" shall mean the board can determine
the voter's eligibility based on the statement of the affiant or records
of the board.

(g) If the central board of canvassers finds that the statewide voter
registration list supplies sufficient information to identify a voter,
failure by the voter to include on the affidavit ballot envelope the
address where such voter was previously registered shall not be a fatal
defect and the board shall cast and canvass such affidavit ballot.

** (h) 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.

** NB Effective January 1, 2023

(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'
determination that an affidavit ballot is invalid. Such ballots shall
not be counted absent an order of the court. In no event may a court
order a ballot that has been counted to be uncounted.

(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-
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
regulations shall include, but not be limited to, provisions to (a)
ensure an efficient and fair review process that respects the privacy of
the voter, (b) ensure the security of the central count scanners used
before election day, and (c) ensure that ballots cast as provided in
this section are canvassed and counted as if cast on election day.