1. The Laws of New York
  2. Consolidated Laws
  3. Election
  4. Article 9: Canvass of Results
  5. Title 2: Canvass By Board of Elections


Section 9-209 Canvass of absentee, military and special ballots and ballots cast by voters with registration poll records missing on days of election o...

Election (ELN)

Canvass of absentee, military and special ballots and ballots cast by voters with registration poll records missing on days of election or voters who have not had their identity previously verified or who have moved after registering. * 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 cast and canvass any absentee, military, special presidential, special federal or other special ballots and any ballots voted by voters who moved within the state after registering, voters who are in inactive status, voters whose registration was incorrectly transferred to another address even though they did not move, voters whose registration poll records were missing on the day of such election, voters who have not had their identity previously verified and voters whose registration poll records did not show them to be enrolled in the party in which they claimed to be enrolled and voters incorrectly identified as having already voted. 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 cast and canvassed.

  * NB Effective until the earlier of: April 12, 2021 OR 5 days after the date of certification by the state board of elections that the information technology infrastructure to substantially implement these provisions is functional

  * 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 cast and canvass any absentee, military, special presidential, special federal or other special ballots and any ballots voted by voters who moved within the state after registering, voters who are in inactive status, voters whose registration was incorrectly transferred to another address even though they did not move, voters whose registration poll records were missing on the day of such election, voters who have not had their identity previously verified, voters who submitted a voter registration application through the electronic voter registration transmittal system but did not provide the required exemplar signature, and voters whose registration poll records did not show them to be enrolled in the party in which they claimed to be enrolled and voters incorrectly identified as having already voted. 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 cast and canvassed.

  * NB Effective whichever is earlier: April 12, 2021 OR 5 days after the date of certification by the state board of elections that the information technology infrastructure to substantially implement these provisions is functional

  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 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. 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) 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 canvass.

  (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 inspectors as such candidate, political party, or independent body was entitled to appoint at such election in any one election district for which such central board of inspectors is designated to act.

  2. (a) (i) Upon assembling at the time and place fixed for such meeting, each central board of inspectors shall examine, cast, and canvass the envelopes and the ballots therein contained as nearly as practicable in the following manner:

  (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.

  (B) If there is more than one 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 envelope bears the later date, then all such envelopes shall be rejected.

  (C) If such person is found to be registered and has not voted in person, an inspector shall compare the signature, if any, on each 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 inspector shall certify thereto by placing his or her initials in the space provided in the computer generated list of registered voters.

  (D) If such person is found to be registered and has not voted in person, and if no challenge is made, or if a challenge made is not sustained, the envelope shall be opened, the ballot or ballots withdrawn without unfolding, and the ballot or ballots deposited in the proper ballot box or boxes, or envelopes, provided however that, 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 envelope which shall be endorsed "not enrolled." At the time of the deposit of such ballot or ballots in the box or envelopes, the inspectors shall enter the words "absentee vote" or "military vote" in the space reserved for the voter's signature on the aforesaid list or in the "remarks" space as appropriate, and shall enter the year and month of the election on the same line in the spaces provided therefor.

  (E) As each envelope is opened, if one or more of the different kinds of ballots to be voted at the election are not found therein, the clerks, or inspectors, 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 envelope shall be rejected. When the casting of such ballots shall have been completed the clerks or inspectors shall ascertain the number of such ballots of each kind which have been deposited in the ballot box by deducting from the number of envelopes opened the number of missing ballots, and shall make a return thereof. The number of absentee 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.

  (ii) If the board of inspectors determines that a person was entitled to vote at such election it shall cast and canvass such ballot 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.

  (iii) If the board of elections determines that a person was entitled to vote at such election, the board shall cast and canvass such 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.

  * (iv) If the board of elections finds that a voter submitted a voter registration application through the electronic voter registration transmittal system and signed the affidavit ballot, the board shall cast and canvass such ballot.

  * NB Effective whichever is earlier: April 12, 2021 OR 5 days after the date of certification by the state board of elections that the information technology infrastructure to substantially implement these provisions is functional

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

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

  (b)(i) Such board of inspectors shall also cast and canvass 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 board of inspectors shall also cast and canvass 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.

  (ii) Federal write-in absentee ballots shall be cast and canvassed only if: (A) an application for an absentee, military or special federal ballot was received from the absentee, military or special federal voter at least thirty days before election day; (B) 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; (C) 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 (D) 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.

  * (iii) If such a federal write-in absentee ballot is received after election day, the envelope in which it is received must contain: (A) a cancellation mark of the United States postal service or a foreign country's postal service; (B) a dated endorsement of receipt by another agency of the United States government; or (C) 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.

  * NB Effective until December 31, 2020

  * (iii) If such a federal write-in absentee ballot is received after election day, the envelope in which it is received must contain: (A) a cancellation mark of the United States postal service or a foreign country's postal service; (B) a dated endorsement of receipt by another agency of the United States government; or (C) 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 before election day.

  * NB Effective December 31, 2020

  (iv) 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 intention can be ascertained.

  (c) The following provisions shall apply to casting and canvassing of all such ballots which are counted by machine and all other provisions of this chapter with respect to casting and canvassing such ballots which are not inconsistent with this paragraph shall be applicable to such ballots.

  (i) Such ballots may be separated into sections before being placed in the counting machine.

  (ii) Any write-in ballots and any ballots which cannot be counted by the machine shall be counted manually subject to all the applicable provisions of this chapter with respect to counting of ballots.

  (iii) The record of the vote counted by machine 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.

  (d) Any person lawfully present may object to the refusal to cast or canvass any ballot on the grounds that the voter is a properly qualified voter of the election district, or in the case of a party primary duly enrolled in such party, or to the casting or canvassing of any ballot on the grounds that the voter is not a properly qualified voter of the election district, or in the case of a party primary not duly enrolled in such party, or otherwise not entitled to cast such ballot. When any such objection is made, the central board of inspectors shall forthwith proceed to determine such objection and reject or cast such ballot according to such determination. If the board cannot agree as to the validity of the ballot it shall set the ballot aside, unopened, for a period of three days at which time the ballot envelope shall be opened and the vote counted unless otherwise directed by an order of the court.

  (e) Upon completing the casting and canvassing of ballots as hereinabove provided for any election district, the central board of inspectors shall thereupon, as nearly as practicable in the manner provided in this chapter for absentee 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 announce the result.

  3. (a) Upon the board of elections determination at or before the time of canvass that an absentee ballot affirmation envelope is unsigned or that an affirmation ballot envelope signature does not correspond to the registration signature or there is no required witness to a mark or that the envelope is returned without an affirmation envelope in the return envelope, the board shall, within one day of such determination, send to the absentee voter's address indicated in the registration records and, if different, the mailing address indicated on the absentee 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.

  (b) The voter may cure the aforesaid defects by filing a duly signed affirmation attesting to the same information required by the affirmation envelope and attesting that the signer of the affirmation is the same person who submitted such absentee 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.

  (c) 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. Provided the board determines that such affirmation addresses the curable defect, the rejected ballot shall be reinstated and duly canvassed. If the board of elections is split as to the sufficiency of the cure affirmation, such envelope shall be set aside for three days and then canvassed unless the board is directed otherwise by court order.

  (d) When the board of elections invalidates a ballot envelope and the defect is not curable, the voter shall be notified by mail sent within three business days of such rejection.

  3-a. If an absentee ballot affirmation envelope is received by the board of elections prior to the election and is found to be unsealed and thus invalid, the board shall forthwith notify the voter of such defect and notify the voter of other options for voting, and, if time permits, provide the voter with a new absentee ballot.