STATE OF NEW YORK
________________________________________________________________________
3524
2019-2020 Regular Sessions
IN ASSEMBLY
January 29, 2019
___________
Introduced by M. of A. NORRIS -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law, the election law and the education law,
in relation to voting by level two or level three sex offenders
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The penal law is amended by adding two new sections 145.75
2 and 145.80 to read as follows:
3 § 145.75 Unlawfully entering or remaining in a school or facility for
4 children for the purposes of voting in the second degree.
5 1. A person is guilty of unlawfully entering or remaining in a school
6 or facility for children for the purposes of voting in the second
7 degree, when being a level two or level three sex offender, he or she
8 enters or remains in a school or facility for children for the purposes
9 of casting a ballot or otherwise voting during any primary, general,
10 special, school district or other election in which residents, regis-
11 tered or qualified voters are entitled to cast ballots.
12 2. For the purposes of this section: (a) "level two or level three sex
13 offender" shall mean a person registered or required to register under
14 section one hundred sixty-eight-f of the correction law who has received
15 a level two or level three designation pursuant to section one hundred
16 sixty-eight-l of the correction law; and (b) "school or facility for
17 children" shall mean a building, structure, athletic playing field,
18 playground or land contained within the real property boundary line of a
19 public or private elementary, parochial, intermediate, junior high,
20 vocational, or high school, or any other facility or institution prima-
21 rily used for the care or treatment of persons under the age of eighteen
22 while one or more of such persons under the age of eighteen are present.
23 Unlawfully entering or remaining in a school or facility for children
24 for the purposes of voting in the second degree is a class A misdemea-
25 nor.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02355-01-9
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1 § 145.80 Unlawfully entering or remaining in a school or facility for
2 children for the purposes of voting in the first degree.
3 A person is guilty of unlawfully entering or remaining in a school or
4 facility for children for the purposes of voting in the first degree
5 when he or she commits the crime of unlawfully entering or remaining in
6 a school or facility for children for the purposes of voting in the
7 second degree, having previously been convicted of such crime within the
8 preceding ten years.
9 Unlawfully entering or remaining in a school or facility for children
10 for the purposes of voting in the first degree is a class E felony.
11 § 2. Paragraph (d) of subdivision 1 of section 8-400 of the election
12 law, as amended by chapter 63 of the laws of 2010, is amended and a new
13 paragraph (e) is added to read as follows:
14 (d) absent from his or her voting residence because he or she is
15 detained in jail awaiting action by a grand jury or awaiting trial, or
16 confined in jail or prison after a conviction for an offense other than
17 a felony, provided that he or she is qualified to vote in the election
18 district of his or her residence[.]; or
19 (e) prohibited from appearing personally at the polling place of the
20 election district in which he or she is a qualified voter because he or
21 she is a level two or level three sex offender and such polling place is
22 located on or within a school or facility for children as the terms
23 "level two and level three sex offender" and "school or facility for
24 children" are defined in section 145.75 of the penal law.
25 § 3. Subparagraph (iv) of paragraph (c) of subdivision 3 of section
26 8-400 of the election law, as amended by chapter 63 of the laws of 2010,
27 is amended and a new subparagraph (v) is added to read as follows:
28 (iv) detained in jail awaiting action by a grand jury or awaiting
29 trial or confined in jail or prison after a conviction for an offense
30 other than a felony and stating the place where he or she is so detained
31 or confined[.]; or
32 (v) prohibited from appearing personally at the polling place of the
33 election district in which he or she is a qualified voter because he or
34 she is a level two or level three sex offender and such polling place is
35 located on or within a school or facility for children as the terms
36 "level two and level three sex offender" and "school or facility for
37 children" are defined in section 145.75 of the penal law.
38 § 4. Section 8-400 of the election law is amended by adding a new
39 subdivision 11 to read as follows:
40 11. Sixty days before each election the board of elections shall
41 compile a list of all level two and level three registered sex offenders
42 entitled to receive absentee ballots pursuant to the provisions of this
43 section. The board of elections shall, by mail addressed to such sex
44 offender at his or her registered address, send an absentee ballot for
45 the ensuing election to such person in the same manner as provided in
46 this section for a qualified voter entitled to an absentee ballot
47 because of illness or disability.
48 § 5. Subdivision 2 of section 2018-a of the education law, as added by
49 chapter 219 of the laws of 1978, paragraphs a and b as amended by chap-
50 ter 136 of the laws of 1991, paragraph c as amended by chapter 26 of the
51 laws of 1994, paragraph d as amended by chapter 72 of the laws of 1988
52 and paragraph g as amended by chapter 825 of the laws of 1984, is
53 amended to read as follows:
54 2. a. An applicant for such an absentee ballot shall submit an appli-
55 cation setting forth (1) his or her name and residence address, includ-
56 ing the street and number, if any, or town and rural delivery route, if
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1 any; (2) that he or she is or will be, on the day of the school district
2 election, a qualified voter of the school district in which he or she
3 resides in that he or she is or will be, on such date, over eighteen
4 years of age, a citizen of the United States and has or will have
5 resided in the district for thirty days next preceding such date; (3)
6 whether he or she is registered in the district; and (4) that he or she
7 will be unable to appear to vote in person on the day of the school
8 district election for which the absentee ballot is requested because he
9 or she is, or will be on such day (a) a patient in a hospital, or unable
10 to appear personally at the polling place on such day because of illness
11 or physical disability [or]; (b) because his or her duties, occupation,
12 business, or studies will require him or her to be outside of the county
13 or city of his or her residence on such day[,]; (c) because he or she
14 will be on vacation outside the county or city of his or her residence
15 on such day; [or,] (d) absent from his voting residence because he or
16 she is detained in jail awaiting action by a grand jury or awaiting
17 trial or is confined in prison after conviction for an offense other
18 than a felony; or (e) prohibited from appearing personally at the poll-
19 ing place of the election district in which he or she is a qualified
20 voter because he or she is a level two or level three sex offender and
21 such polling place is located on or within a school or facility for
22 children as the terms "level two and level three sex offender" and
23 "school or facility for children" are defined in section 145.75 of the
24 penal law.
25 Such application must be received by the district clerk at least seven
26 days before the election if the ballot is to be mailed to the voter, or
27 the day before the election, if the ballot is to be delivered personally
28 to the voter.
29 b. (1) Where such duties, occupation, business, or studies are of such
30 a nature as ordinarily to require such absence, a brief description of
31 such duties, occupation, business, or studies shall be set forth in such
32 application. (2) Where such duties, occupation, business, or studies are
33 not of such a nature as ordinarily to require such absence, such appli-
34 cation shall contain a statement of the special circumstances on account
35 of which such absence is required.
36 c. Where the applicant expects in good faith to be absent on the day
37 of the election because he or she will be on vacation elsewhere on such
38 day, such application shall also contain the dates upon which he or she
39 expects to begin and end such vacation, the place or places where he or
40 she expects to be on such vacation, the name and address of his or her
41 employer, if any, and if self-employed or retired, a statement to that
42 effect.
43 d. Where the absence is because of detention or confinement to jail,
44 such application shall state whether the voter is detained awaiting
45 action of the grand jury or is confined after conviction for an offense
46 other than a felony.
47 e. Where the applicant indicates he or she is prohibited from appear-
48 ing personally at the polling place of the election district in which he
49 or she is a qualified voter because he or she is a level two or level
50 three sex offender and such polling place is located on or within a
51 school or facility for children as the terms "level two and level three
52 sex offender" and "school or facility for children" are defined in
53 section 145.75 of the penal law such application shall state whether or
54 not the voter is currently under a sentence of imprisonment for a felony
55 or on parole.
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1 f. Where a person is or would be, if he or she were a qualified voter,
2 entitled to apply for the right to vote by absentee ballot under the
3 provisions of this section, his or her spouse, parent or child, if a
4 qualified voter and a resident of the same school district, shall be
5 entitled to vote as an absentee voter upon personally making and signing
6 an application in accordance with the preceding provisions of this
7 subdivision and showing that he or she expects to be absent from the
8 school district on the day of the school district election by reason of
9 accompanying or being with the spouse, child or parent who is or would
10 be, if he or she were a qualified voter, so entitled to apply for the
11 right to vote by absentee ballot, and, in the event no application is
12 made by such spouse, child or parent, such further information as the
13 board of registration shall require.
14 [f.] g. Such application shall include the following statement to be
15 signed by the voter.
16 I hereby declare that the foregoing is a true statement to the best of
17 my knowledge and belief, and I understand that if I make any material
18 false statement in the foregoing statement of application for absentee
19 ballots, I shall be guilty of a misdemeanor.
20 Date.....................Signature of Voter ............................
21 [g.] h. An applicant whose ability to appear personally at the polling
22 place of the school district of which he or she is a qualified voter is
23 substantially impaired by reason of permanent illness or physical disa-
24 bility and whose registration record has been marked "permanently disa-
25 bled" by the board of elections pursuant to the provisions of the
26 election law shall be entitled to receive an absentee ballot pursuant to
27 the provisions of this section without making separate application for
28 such absentee ballot, and the board of registration upon being advised
29 by the board of elections on or with the list of registered voters that
30 the registration record of a voter is marked "permanently disabled"
31 shall send an absentee ballot to such voter at his or her last known
32 address with a request to the postal authorities not to forward same but
33 to return same in five days in the event that it cannot be delivered to
34 the addressee. The board of education shall determine whether such
35 ballot shall be sent by first class or by certified mail. All such
36 ballots shall be mailed in the same manner as determined by the board of
37 education. The board of registration shall make an appropriate entry on
38 the registration indicating the fact that an absentee ballot has been
39 sent and the date of mailing.
40 § 6. Subdivision 2 of section 2018-b of the education law, as amended
41 by chapter 46 of the laws of 1992 and paragraph c as amended by chapter
42 26 of the laws of 1994, is amended to read as follows:
43 2. a. An applicant for such an absentee ballot shall submit an appli-
44 cation setting forth (1) his or her name and residence address, includ-
45 ing the street and number, if any, or town and rural delivery route, if
46 any; (2) that he or she is or will be, on the day of the school district
47 election, a qualified voter of the school district in which he or she
48 resides in that he or she is or will be, on such date, over eighteen
49 years of age, a citizen of the United States and has or will have
50 resided in the district for thirty days next preceding such date; and
51 (3) that he or she will be unable to appear to vote in person on the day
52 of the school district election for which the absentee ballot is
53 requested because he or she is, or will be on such day (a) a patient in
54 a hospital, or unable to appear personally at the polling place on such
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1 day because of illness or physical disability [or]; (b) because his or
2 her duties, occupation, business, or studies will require him or her to
3 be outside of the county or city of his residence on such day[,]; (c)
4 because he or she will be on vacation outside the county or city of his
5 or her residence on such day; [or,] (d) absent from his or her voting
6 residence because he or she is detained in jail awaiting action by a
7 grand jury or awaiting trial or is confined in prison after conviction
8 for an offense other than a felony; or (e) prohibited from appearing
9 personally at the polling place of the election district in which he or
10 she is a qualified voter because he or she is a level two or level three
11 sex offender and such polling place is located on or within a school or
12 facility for children as the terms "level two and level three sex offen-
13 der" and "school or facility for children" are defined in section 145.75
14 of the penal law.
15 Such application must be received by the district clerk or designee of
16 the trustees or school board at least seven days before the election if
17 the ballot is to be mailed to the voter, or the day before the election,
18 if the ballot is to be delivered personally to the voter.
19 b. (1) Where such duties, occupation, business, or studies are of such
20 a nature as ordinarily to require such absence, a brief description of
21 such duties, occupation, business, or studies shall be set forth in such
22 application.
23 (2) Where such duties, occupation, business, or studies are not of
24 such a nature as ordinarily to require such absence, such application
25 shall contain a statement of the special circumstances on account of
26 which such absence is required.
27 c. Where the applicant expects in good faith to be absent on the day
28 of the election because he or she will be on vacation elsewhere on such
29 day, such application shall also contain the dates upon which he or she
30 expects to begin and end such vacation, the place or places where he or
31 she expects to be on such vacation, the name and address of his or her
32 employer, if any, and if self-employed or retired, a statement to that
33 effect.
34 d. Where the absence is because of detention or confinement to jail,
35 such application shall state whether the voter is detained awaiting
36 action of the grand jury or is confined after conviction for an offense
37 other than a felony.
38 e. Where the applicant indicates that he or she is prohibited from
39 appearing personally at the polling place of the election district in
40 which he or she is a qualified voter because he or she is a level two or
41 level three sex offender and such polling place is located on or within
42 a school or facility for children as the terms "level two and level
43 three sex offender" and "school or facility for children" are defined in
44 section 145.75 of the penal law such application shall state whether or
45 not the voter is currently under a sentence of imprisonment for a felony
46 or on parole.
47 f. Where a person is or would be, if he or she were a qualified voter,
48 entitled to apply for the right to vote by absentee ballot under the
49 provisions of this section, his or her spouse, parent or child, if a
50 qualified voter and a resident of the same school district, shall be
51 entitled to vote as an absentee voter upon personally making and signing
52 an application in accordance with the preceding provisions of this
53 subdivision and showing that he or she expects to be absent from the
54 school district on the day of the school district election by reason of
55 accompanying or being with the spouse, child or parent who is or would
56 be, if he or she were a qualified voter, so entitled to apply for the
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1 right to vote by absentee ballot, and, in the event no application is
2 made by such spouse, child or parent, such further information as the
3 clerk of the school district or designee of the trustees or school board
4 shall require.
5 [f.] g. Such application shall include the following statement to be
6 signed by the voter.
7 I hereby declare that the foregoing is a true statement to the best of
8 my knowledge and belief, and I understand that if I make any material
9 false statement in the foregoing statement of application for absentee
10 ballots, I shall be guilty of a misdemeanor.
11 Date......................Signature of Voter ...........................
12 [g.] h. The clerk of the school district or a designee of the trustees
13 or school board shall request registration lists from the board of
14 elections pursuant to subdivision three of section 5-612 of the election
15 law for those voters whose registration record has been marked "perma-
16 nently disabled". An applicant whose ability to appear personally at the
17 polling place of the school district of which he or she is a qualified
18 voter is substantially impaired by reason of permanent illness or phys-
19 ical disability and whose registration record has been marked "perma-
20 nently disabled" as determined by the board of elections pursuant to the
21 provisions of this chapter and who has previously applied for an absen-
22 tee ballot shall be entitled to receive subsequent absentee ballots
23 pursuant to the provisions of this section without making separate
24 application for such absentee ballot, and the clerk of the school
25 district or a designee of the trustees or school board shall send an
26 absentee ballot to such voter at his or her last known address with a
27 request to the postal authorities not to forward same but to return same
28 in five days in the event that it cannot be delivered to the addressee.
29 The clerk of the school district or a designee of the trustees or school
30 board shall determine whether such ballot shall be sent by first class
31 or by certified mail. All such ballots shall be mailed in the same
32 manner as determined by the trustees or the board of education.
33 § 7. The election law is amended by adding a new section 17-172 to
34 read as follows:
35 § 17-172. Immunity and defense for poll workers and others related to
36 admittance of sex offenders to polling places. 1. No person shall be
37 civilly liable for refusing admittance of a level two or level three sex
38 offender to a polling place which is or is within a school or facility
39 for children as those terms are defined in section 145.75 of the penal
40 law, when such person is acting in good faith and in the performance of
41 their duties. For the purposes of this section, a person shall be deemed
42 to be acting in good faith if the name and address or name and approxi-
43 mate address based on zip code of the voter refused admission appears on
44 a list of level two or level three sex offenders provided by a board of
45 elections or the division of criminal justice services.
46 2. It shall be an affirmative defense to any charge of violating the
47 elective franchise of a voter based upon the refusing of admittance of a
48 level two or level three sex offender to a polling place which is or is
49 within a school or facility for children as those terms are defined in
50 section 145.75 of the penal law, that the name and address or name and
51 approximate address based on zip code of the voter refused admission
52 appears on a list of level two or level three sex offenders provided by
53 a board of elections or the division of criminal justice services.
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1 § 8. This act shall take effect immediately and shall apply to
2 elections held on and after January 1, 2020, provided that the state
3 board of elections shall be authorized to promulgate any rules, regu-
4 lations, forms, or notices required to carry out the provisions of this
5 act prior to such effective date.