STATE OF NEW YORK
________________________________________________________________________
7931
2021-2022 Regular Sessions
IN ASSEMBLY
June 1, 2021
___________
Introduced by M. of A. CARROLL -- read once and referred to the Commit-
tee on Election Law
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:
1 Section 1. Section 9-209 of the election law is REPEALED and a new
2 section 9-209 is added to read as follows:
3 § 9-209. Canvass of absentee, military and special ballots, and
4 ballots cast in affidavit envelopes. Before completing the canvass of
5 votes cast in any primary, general, special, or other election at which
6 voters are required to sign their registration poll records before
7 voting, the board of elections shall proceed in the manner hereinafter
8 prescribed to review, cast and canvass any absentee, military, special
9 presidential, special federal or other special ballots and any ballots
10 cast in affidavit envelopes. Each such ballot shall be retained in the
11 original envelope containing the voter's affidavit and signature, in
12 which it is delivered to the board of elections until such time as it is
13 to be reviewed, in order to be cast and canvassed.
14 1. Central board of canvassers. Within four days of the receipt of an
15 absentee, military or special ballot, the board of elections shall
16 designate itself or such of its employees as it shall deem appropriate
17 as a set of poll clerks to review such ballot envelopes. The board may
18 designate additional sets of poll clerks and if it designates more than
19 one such set shall apportion among all such sets the election districts
20 from which such ballots have been received, provided that when reviewing
21 ballots, all ballots from a single election district shall be assigned
22 to a single set of clerks, and that each such set shall be divided
23 equally between representatives of the two major political parties. Each
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11113-06-1
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1 such set of clerks shall be deemed a central board of canvassers for
2 purposes of this section.
3 2. Review of absentee, military and special ballot envelopes. Within
4 four days of the receipt of an absentee, military or special ballot
5 before the election, and within one day of receipt on or after the
6 election, each central board of canvassers shall examine the ballot
7 affirmation envelopes as nearly as practicable in the following manner:
8 (a) If a person whose name is on a ballot envelope as a voter is not
9 on a registration poll record, the computer-generated list of registered
10 voters or the list of special presidential voters, or if there is no
11 name on the ballot envelope, or if the ballot envelope was not timely
12 postmarked or received, or if the ballot envelope is completely
13 unsealed, such ballot envelope shall be set aside unopened for review
14 pursuant to subdivision eight of this section with a relevant notation
15 indicated on the ballot envelope notwithstanding a split among the
16 central board of canvassers as to the invalidity of the ballot;
17 provided, however, if the ballot envelope is completely unsealed, such
18 voter shall receive notice pursuant to paragraph (h) of subdivision
19 three of this section.
20 (b) If there is more than one timely ballot envelope executed by the
21 same voter, the one bearing the later date of execution shall be
22 accepted and the other rejected. If it cannot be determined which ballot
23 envelope bears the later date, then all such ballot envelopes shall be
24 rejected. When the board of elections has issued a second ballot it
25 shall set aside the first ballot unopened to provide the voter time to
26 return the second ballot. Notwithstanding the foregoing, if a ballot
27 envelope for a voter was previously reviewed and opened, then the subse-
28 quently received ballot envelope shall be set aside unopened.
29 (c) If such person is found to be registered, the central board of
30 canvassers shall compare the signature, if any, on each ballot envelope
31 with the signature, if any, on the registration poll record, the compu-
32 ter-generated list of registered voters, or the list of special presi-
33 dential voters, of the person of the same name who registered from the
34 same address. If the signatures are found to correspond, such central
35 board of canvassers shall certify thereto in a manner provided by the
36 state board of elections.
37 (d) If such person is found to be registered and has requested a
38 ballot, the ballot envelope shall be opened, the ballot or ballots with-
39 drawn, unfolded, stacked face down and deposited in a secure ballot box
40 or envelope. Upon such processing of the ballot, the voter's record
41 shall be updated with a notation that indicates that the voter has
42 already voted in such election. The board of elections shall adopt
43 procedures, consistent with regulations of the state board of elections,
44 to prevent voters from voting more than once and to secure ballots and
45 prevent public release of election results prior to election day. Such
46 procedures shall be filed with the state board of elections at least
47 ninety days before they shall be effective.
48 (e) In the case of a primary election, the ballot shall be deposited
49 in the box only if the ballot is of the party with which the voter is
50 enrolled according to the entry on the back of his or her registration
51 poll record or in the computer-generated registration list; if not, the
52 ballot shall be rejected without inspection or unfolding and shall be
53 returned to the ballot envelope which shall be endorsed "not enrolled".
54 (f) If the central board of canvassers determines that a person was
55 entitled to vote at such election it shall prepare such ballot to be
56 stacked face down and deposited in a secure ballot box or envelope
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1 consistent with paragraph (d) of this subdivision if such board finds
2 that ministerial error by the board of elections or any of its employees
3 caused such ballot envelope not to be valid on its face.
4 (g) If the central board of canvassers splits as to whether a ballot
5 is valid, it shall prepare such ballot to be cast and canvassed pursuant
6 to this subdivision.
7 (h) As each ballot envelope is opened, if one or more of the different
8 kinds of ballots to be voted at the election are not found therein, the
9 central board of canvassers, shall make a memorandum showing what ballot
10 or ballots are missing. If a ballot envelope shall contain more than one
11 ballot for the same offices, all the ballots in such ballot envelope
12 shall be rejected. When the review of such ballots shall have been
13 completed, the central board of canvassers shall ascertain the number of
14 such ballots of each kind which have been deposited in the ballot box by
15 deducting from the number of ballot envelopes opened with the number of
16 missing ballots, and shall make a return thereof. The number of voters'
17 ballots deposited in the ballot box shall be added to the number of
18 other ballots deposited in the ballot box, in order to determine the
19 number of all ballots of each kind to be accounted for in the ballot
20 box.
21 3. Curing ballots. (a) At the time a ballot affirmation envelope is
22 reviewed pursuant to subdivision two of this section, the board of
23 elections shall determine whether it has a curable defect.
24 (b) A curable defect includes instances where the ballot envelope: (i)
25 is unsigned; (ii) has a signature that does not correspond to the regis-
26 tration signature; (iii) has no required witness to a mark; (iv) is
27 returned without a ballot affirmation envelope in the return envelope;
28 (v) has a ballot affirmation envelope that is signed by the person that
29 has provided assistance to the voter but is not signed or marked by the
30 voter; or (vi) contains the signature of someone other than the voter
31 and not of the voter.
32 (c) The board shall indicate the issue that must be cured on the
33 ballot envelope and, within one day of such determination, send to the
34 voter's address indicated in the registration records and, if different,
35 the mailing address indicated on the ballot application, a notice
36 explaining the reason for such rejection and the procedure to cure the
37 rejection. The board shall also contact the voter by either electronic
38 mail or telephone, if such information is available to the board in the
39 voter's registration information, in order to notify the voter of the
40 deficiency and the opportunity and the process to cure the deficiency.
41 (d) The voter may cure the aforesaid defects by filing a duly signed
42 affirmation attesting to the same information required by the ballot
43 affirmation envelope and attesting that the signer of the affirmation is
44 the same person who submitted such ballot envelope. The board shall
45 include a form of such affirmation with the notice to the voter. The
46 affirmation shall be in a form prescribed by the state board of
47 elections.
48 (e) Such cure affirmation shall be filed with the board no later than
49 seven business days after the board's mailing of such curable rejection
50 notice or the day before the election, whichever is later. Provided the
51 board determines that such affirmation addresses the curable defect, the
52 rejected ballot shall be reinstated and prepared for canvassing pursuant
53 to subdivision two of this section. If the board of elections is split
54 as to the sufficiency of the cure affirmation, such envelope shall be
55 prepared for canvassing pursuant to paragraph (d) of subdivision two of
56 this section.
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1 (f) If the ballot envelope contains one or more curable defects that
2 have not been timely cured, the ballot envelope shall be set aside for
3 review pursuant to subdivision eight of this section.
4 (g) Ballot envelopes are not invalid and do not require a cure if: (i)
5 a ballot envelope is undated or has the wrong date, provided it is post-
6 marked on or prior to election day or is otherwise received timely by
7 the board of elections; (ii) the voter signed or marked the ballot
8 affirmation envelope at a place on the envelope other than the desig-
9 nated signature line; (iii) a voter used a combination of ink (of any
10 color) or pencil to complete the ballot envelope; (iv) papers found in
11 the ballot envelope with the ballot are materials from the board of
12 elections, such as instructions or an application sent by the board of
13 elections; (v) an extrinsic mark or tear on the ballot envelope appears
14 to be there as a result of the ordinary course of mailing or transmit-
15 tal; or (vi) the ballot envelope is partially unsealed but there is no
16 ability to access the ballot.
17 (h) When the board of elections invalidates a ballot affirmation
18 envelope and the defect is not curable, the ballot envelope shall be set
19 aside for review pursuant to subdivision eight of this section and the
20 board shall notify the voter by mail, sent within three business days of
21 such rejection, and by either electronic mail or telephone, if such
22 information is available to the board in the voter's registration infor-
23 mation, and notify the voter of other options for voting, and, if time
24 permits, provide the voter with a new ballot.
25 (i) If a ballot affirmation envelope is received by the board of
26 elections prior to the election and is found to be completely unsealed
27 and thus invalid, the board shall notify the voter by mail, sent within
28 three business days of such determination, and by either electronic mail
29 or telephone, if such information is available to the board in the
30 voter's registration information, and notify the voter of other options
31 for voting, and, if time permits, provide the voter with a new ballot.
32 4. Review of federal write-in absentee ballots. (a) Such central
33 board of canvassers shall review any federal write-in absentee ballots
34 validly cast by an absentee voter, a military voter or a special federal
35 voter for the offices of president and vice-president, United States
36 senator and representative in congress. Such central board of canvas-
37 sers shall also review any federal write-in absentee ballots validly
38 cast by a military voter for all questions or proposals, public offices
39 or party positions for which a military voter is otherwise eligible to
40 vote as provided in section 10-104 of this chapter.
41 (b) Federal write-in absentee ballots shall be deemed valid only if:
42 (i) an application for an absentee, military or special federal ballot
43 was received from the absentee, military or special federal voter; (ii)
44 the federal write-in absentee ballot was submitted from inside or
45 outside the United States by a military voter or was submitted from
46 outside the United States by a special federal voter; (iii) such ballot
47 is received by the board of elections not later than thirteen days
48 following the day of election or seven days after a primary election;
49 and (iv) the absentee, military or special federal ballot which was sent
50 to the voter is not received by the board of elections by the thirteenth
51 day following the day of a general or special election or the seventh
52 day after a primary election.
53 (c) If such a federal write-in absentee ballot is received after
54 election day, the envelope in which it is received must contain: (i) a
55 cancellation mark of the United States postal service or a foreign coun-
56 try's postal service; (ii) a dated endorsement of receipt by another
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1 agency of the United States government; or (iii) if cast by a military
2 voter, the signature and date of the voter and one witness thereto with
3 a date which is ascertained to be not later than the day of the
4 election.
5 (d) If such a federal write-in absentee ballot contains the name of a
6 person or persons in the space provided for a vote for any office, such
7 ballot shall be counted as a vote for such person or persons. A vote for
8 a person who is the candidate of a party or independent body either for
9 president or vice-president shall be deemed to be a vote for both the
10 candidates of such party or independent body for such offices. If such a
11 ballot contains the name of a party or independent body in the space
12 provided for a vote for any office, such ballot shall be deemed to be a
13 vote for the candidate or candidates, if any, of such party or independ-
14 ent body for such office. In the case of the offices of president and
15 vice-president a vote cast for a candidate, either directly or by writ-
16 ing in the name of a party or independent body, shall also be deemed to
17 be votes for the electors supporting such candidate. Any abbreviation,
18 misspelling or other minor variation in the form of the name of a candi-
19 date or a party or independent body shall be disregarded in determining
20 the validity of the ballot, if the voter's intention can be ascertained.
21 5. Nothing in this section prohibits a representative of a candidate,
22 political party, or independent body entitled to have watchers present
23 at the polls in any election district in the board's jurisdiction from
24 observing, without objection, the review of ballot envelopes required by
25 subdivisions two, three and four of this section.
26 6. Casting and canvassing of absentee, military and special ballots.
27 (a) The following provisions shall apply to the casting and canvassing
28 of all valid ballots received before, on or after election day and
29 reviewed and prepared pursuant to subdivision two of this section, and
30 all other provisions of this chapter with respect to casting and
31 canvassing such ballots which are not inconsistent with this subdivision
32 shall be applicable to such ballots.
33 (b) The day before the first day of early voting, the central board of
34 canvassers shall scan all valid ballots previously reviewed and prepared
35 pursuant to this section as nearly as practicable in the following
36 manner:
37 (i) Such ballots may be separated into sections before being placed in
38 the counting machine and scanned;
39 (ii) Upon completion of the scanning of such valid ballots, the scan-
40 ners used for such purpose shall be secured, and no tabulation of the
41 results shall occur until one hour before the close of the polls on
42 election day. Any ballots scanned during this period shall be secured
43 in the same manner as voted ballots cast during early voting or on
44 election day. The board of elections shall adopt procedures to prevent
45 the public release of election results prior to the close of polls on
46 election day and such procedures shall be consistent with the regu-
47 lations of the state board of elections and shall be filed with the
48 state board of elections at least ninety days before they shall be
49 effective;
50 (iii) Any valid ballots that cannot be cast on a scanner shall be held
51 inviolate and unexamined and shall be duly secured until after the close
52 of polls on election day when such ballots shall be examined and
53 canvassed in a manner consistent with subdivision two of section 9-110
54 of this article.
55 (c) After the close of the polls on the last day of early voting, the
56 central board of canvassers shall scan all valid ballots received and
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1 prepared pursuant to this section, and not previously scanned on the day
2 before the first day of early voting, in the same manner as provided in
3 paragraph (b) of this subdivision using the same or different scanners.
4 (d) In casting and canvassing such ballots, the board shall take all
5 measures necessary to ensure the privacy of voters.
6 (e) The board of elections may begin to obtain tabulated results for
7 all ballots previously scanned, as required by this subdivision, one
8 hour before the scheduled close of polls on election day; provided,
9 however, no unofficial tabulations of election results shall be publicly
10 announced or released in any manner until after the close of polls on
11 election day at which time such tabulations shall be added into the
12 election night vote totals.
13 (f) Upon completing the casting and canvassing of any remaining valid
14 ballots as hereinabove provided for any election district, the central
15 board of canvassers shall thereupon, as nearly as practicable in the
16 manner provided in this article for absentee, military and special
17 ballots, verify the number of ballots so cast, tally the votes so cast,
18 add such tally to the previous tally of all votes cast in such election
19 district, and record the result.
20 (g) The record of the vote counted by each scanner and manually for
21 each candidate and for and against each ballot proposal, printed by
22 election district, shall be preserved in the same manner and for the
23 same period as the returns of canvass for the election.
24 7. Post-election review and canvassing of affidavit ballots. (a)
25 Within four business days of the election, the board of elections shall
26 review all affidavit ballots cast in the election. If the central board
27 of canvassers determines that a person was entitled to vote at such
28 election it shall cast and canvass such affidavit ballot; provided,
29 however, if the board of elections receives one or more timely absentee
30 ballots from a voter who also cast an affidavit ballot at a poll site,
31 the last such timely absentee ballot received shall be canvassed and the
32 affidavit ballot shall be set aside unopened; and provided further, if a
33 voter was issued an absentee ballot and votes in person via an affidavit
34 ballot and the board does not receive such absentee ballot, the affida-
35 vit ballot shall be canvassed if the voter is otherwise qualified to
36 vote in such election.
37 (b) Affidavit ballots are valid when cast at a polling site permitted
38 by law by qualified voters: (i) who moved within the state after regis-
39 tering; (ii) who are in inactive status; (iii) whose registration was
40 incorrectly transferred to another address even though they did not
41 move; (iv) whose registration poll records were missing on the day of
42 such election; (v) who have not had their identity previously verified;
43 (vi) whose registration poll records did not show them to be enrolled in
44 the party in which they are enrolled; and (vii) who are incorrectly
45 identified as having already voted.
46 (c) Affidavit ballots are valid to the extent that ministerial error
47 by the board of elections or any of its employees caused such ballot
48 envelope not to be valid on its face.
49 (d) If the central board of canvassers determines that a person was
50 entitled to vote at such election, the board shall cast and canvass such
51 affidavit ballot if such board finds that the voter appeared at the
52 correct polling place, regardless of the fact that the voter may have
53 appeared in the incorrect election district and regardless of whether
54 the voter's name was in the registration poll record.
55 (e) If the central board of canvassers finds that a voter submitted a
56 voter registration application through the electronic voter registration
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1 transmittal system pursuant to title eight of article five of this chap-
2 ter and signed the affidavit ballot, the board shall cast and canvass
3 such affidavit ballot if the voter is otherwise qualified to vote in
4 such election.
5 (f) If the central board of canvassers determines that a person was
6 entitled to vote at such election, the board shall cast and canvass such
7 affidavit ballot if such board finds that the voter substantially
8 complied with the requirements of this chapter. For purposes of this
9 paragraph, "substantially complied" shall mean the board can determine
10 the voter's eligibility based on the statement of the affiant or records
11 of the board.
12 (g) If the central board of canvassers finds that the statewide voter
13 registration list supplies sufficient information to identify a voter,
14 failure by the voter to include on the affidavit ballot envelope the
15 address where such voter was previously registered shall not be a fatal
16 defect and the board shall cast and canvass such affidavit ballot.
17 (h) If the central board of canvassers finds that the voter registered
18 or pre-registered to vote for the first time pursuant to title nine of
19 article five of this chapter at least twenty-five days before a primary,
20 appeared at such primary election, and indicated on the affidavit ballot
21 envelope the intent to enroll in such party, the affidavit ballot shall
22 be cast and canvassed if the voter is otherwise qualified to vote in
23 such election.
24 (i) When the central board of canvassers determines that an affidavit
25 ballot is invalid due to a missing signature on the affidavit ballot
26 envelope, or because the signature on the affidavit ballot envelope does
27 not correspond to the registration signature, such ballots shall be
28 subject to the cure procedure in subdivision three of this section.
29 (j) At the meeting required pursuant to paragraph (a) of subdivision
30 eight of this section, each candidate, political party, and independent
31 body shall be entitled to object to the board of elections' determi-
32 nation that an affidavit ballot is invalid. Such ballots shall not be
33 counted absent an order of the court. In no event may a court order a
34 ballot that has been counted to be uncounted.
35 (k) The board of elections shall enter information into the ballot
36 tracking system, as defined in section 8-414 of this chapter, to allow a
37 voter who cast a ballot in an affidavit envelope to determine if the
38 vote was counted.
39 8. Post-election review of invalid absentee, military and special
40 ballots. (a) Within four business days of the election, the board of
41 elections shall designate itself or such of its employees to act as a
42 central board of canvassers as provided in subdivision one of this
43 section and meet to review absentee, military and special ballots deter
44 mined to be invalid pursuant to paragraph (a) of subdivision two of this
45 section, ballot envelopes that were returned to the board as undelivera-
46 ble, and ballot envelopes containing one or more curable defects that
47 have not been timely cured.
48 (b) At least five days prior to the time fixed for such meeting, the
49 board shall send notice by first class mail to each candidate, political
50 party, and independent body entitled to have had watchers present at the
51 polls in any election district in the board's jurisdiction. Such notice
52 shall state the time and place fixed by the board for such post-election
53 review.
54 (c) Each such candidate, political party, and independent body shall
55 be entitled to appoint such number of watchers to attend upon each
56 central board of canvassers as the candidate, political party, or inde-
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1 pendent body was entitled to appoint at the election in any election
2 district for which the central board of canvassers is designated to act.
3 (d) Upon assembling at the time and place fixed for such meeting, each
4 central board of canvassers shall review the ballot envelopes determined
5 to be invalid and set aside in the review required by subdivision two of
6 this section, ballot envelopes that were returned as undeliverable, and
7 ballot envelopes containing one or more curable defects that have not
8 been timely cured.
9 (e) Each such candidate, political party, and independent body shall
10 be entitled to object to the board of elections' determination that a
11 ballot is invalid. Such ballots shall not be counted absent an order of
12 the court. In no event may a court order a ballot that has been counted
13 to be uncounted.
14 9. State board of elections; powers and duties for canvassing of
15 absentee, military, special and affidavit ballots. The state board of
16 elections shall promulgate rules and regulations necessary for the
17 implementation of the provisions of this section. Such rules and regu-
18 lations shall include, but not be limited to, provisions to (a) ensure
19 an efficient and fair review process that respects the privacy of the
20 voter, (b) ensure the security of the central count scanners used before
21 election day, and (c) ensure that ballots cast as provided in this
22 section are canvassed and counted as if cast on election day.
23 § 2. Section 9-211 of the election law, as amended by chapter 515 of
24 the laws of 2015, subdivision 1 as amended by chapter 5 of the laws of
25 2019, is amended to read as follows:
26 § 9-211. Audit of voter verifiable audit records. 1. Within fifteen
27 days after each general or special election, within thirteen days after
28 every primary election, and within seven days after every village
29 election conducted by the board of elections, the board of elections or
30 a bipartisan committee appointed by such board shall audit the voter
31 verifiable audit records from three percent of voting machines or
32 systems within the jurisdiction of such board. Such audits may be
33 performed manually or via the use of any automated tool authorized for
34 such use by the state board of elections which is independent from the
35 voting system it is being used to audit. Voting machines or systems
36 shall be selected for audit through a random, manual process. At least
37 five days prior to the time fixed for such selection process, the board
38 of elections shall send notice by first class mail to each candidate,
39 political party and independent body entitled to have had watchers pres-
40 ent at the polls in any election district in such board's jurisdiction.
41 Such notice shall state the time and place fixed for such random
42 selection process. The audit shall be conducted in the same manner, to
43 the extent applicable, as a canvass of paper ballots. Each candidate,
44 political party or independent body entitled to appoint watchers to
45 attend at a polling place shall be entitled to appoint such number of
46 watchers to observe the audit.
47 2. Within three days of any election, the board of elections or a
48 bipartisan committee appointed by such board shall audit the central
49 count ballot scanners by auditing the ballots from three percent of
50 election districts that were tabulated by such scanners within the
51 jurisdiction of such board by that time. All provisions of this section
52 shall otherwise apply to such audit. To the extent additional ballots
53 are tabulated through central count ballot scanners after the initial
54 audit, three percent of election districts shall thereafter be audited
55 as to the additional ballots tabulated. The certification of the canvass
56 shall not await the completion of such additional audit; provided,
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1 however, if upon the completion of such additional audit the criteria
2 are met for the results of the audit to replace the canvass then the
3 board of canvassers shall forthwith reconvene and adjust the canvass as
4 required.
5 3. The audit tallies for each voting machine or system shall be
6 compared to the tallies recorded by such voting machine or system, and a
7 report shall be made of such comparison which shall be filed in the
8 office of the state board of elections.
9 [3.] 4. The state board of elections shall, in accordance with subdi-
10 vision four of section 3-100 of this chapter, promulgate regulations
11 establishing a uniform statewide standard to be used by boards of
12 elections to determine when a discrepancy between the audit tallies and
13 the voting machine or system tallies shall require a further voter veri-
14 fiable record audit of additional voting machines or systems or a
15 complete audit of all machines or systems within the jurisdiction of a
16 board of elections. Any board of elections shall be empowered to order
17 that any such audit shall be conducted whenever any such discrepancy
18 exists.
19 [4.] 5. If a complete audit shall be conducted, the results of such
20 audit shall be used by the canvassing board in making the statement of
21 canvass and determinations of persons elected and propositions rejected
22 or approved. The results of a partial voter verifiable record audit
23 shall not be used in lieu of voting machine or system tallies.
24 [5.] 6. Notwithstanding subdivision four of this section, if a voting
25 machine or system is found to have failed to record votes in a manner
26 indicating an operational failure, the board of canvassers shall use the
27 voter verifiable audit records to determine the votes cast on such
28 machine or system, provided such records were not also impaired by the
29 operational failure of the voting machine or system.
30 § 3. Subdivision 5 of section 7-122 of the election law, as amended by
31 chapter 411 of the laws of 2019, is amended to read as follows:
32 5. There shall also be a place for two board of elections staff
33 members or inspectors of opposite political parties to indicate, by
34 placing their initials thereon, that they have checked and marked the
35 voter's poll record and a box labeled "BOE use only" for notations
36 required when the board of elections reviews affirmation ballot envel-
37 opes pursuant to section 9-209 of this chapter.
38 § 4. Subdivision 2-a of section 8-302 of the election law is renum-
39 bered subdivision 2-b and a new subdivision 2-a is added to read as
40 follows:
41 2-a. If a voter's name appears in the ledger or computer generated
42 registration list with a notation indicating that the board of elections
43 has issued the voter an absentee, military or special ballot, such voter
44 shall not be permitted to vote on a voting machine at an early voting
45 site or on election day but may vote by affidavit ballot.
46 § 5. Subdivisions 1, 4 and 5 of section 16-106 of the election law,
47 subdivision 1 as amended by chapter 659 of the laws of 1994, subdivision
48 5 as amended by chapter 359 of the laws of 1989, are amended to read as
49 follows:
50 1. The [casting or canvassing or] post-election refusal to cast: (a)
51 challenged ballots, blank ballots, or void [or canvass] ballots; (b)
52 absentee, military, special [federal], or federal write-in [or] ballots;
53 (c) emergency ballots; and (d) ballots voted in affidavit envelopes [by
54 persons whose registration poll records were not in the ledger or whose
55 names were not on the computer generated registration list on the day of
56 election or voters in inactive status, voters who moved to a new address
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1 in the city or county or after they registered or voters who claimed to
2 be enrolled in a party other than that shown on their registration poll
3 record or on the computer generated registration list and the original
4 applications for a military, special federal, federal write-in, emergen-
5 cy or absentee voter's ballot] may be contested in a proceeding insti-
6 tuted in the supreme or county court, by any candidate or the chairman
7 of any party committee, and by any voter with respect to the refusal to
8 cast such voter's ballot, against the board of canvassers of the returns
9 from such district, if any, and otherwise against the board of inspec-
10 tors of election of such district. If the court determines that the
11 person who cast such ballot was entitled to vote at such election, it
12 shall order such ballot to be cast and canvassed, including if the court
13 finds that ministerial error by the board of elections or any of its
14 employees caused such ballot envelope not to be valid on its face.
15 4. The court shall ensure the strict and uniform application of the
16 election law and shall not permit or require the altering of the sched-
17 ule or procedures in section 9-209 of this chapter but may direct a
18 recanvass or the correction of an error, or the performance of any duty
19 imposed by [law] this chapter on such a state, county, city, town or
20 village board of inspectors, or canvassers.
21 5. In the event procedural irregularities or other facts arising
22 during the election suggest a change or altering of the canvass sched-
23 ule, as provided for in section 9-209 of this chapter, may be warranted,
24 a candidate may seek an order for temporary or preliminary injunctive
25 relief or an impound order halting or altering the canvassing schedule
26 of absentee, military, special or affidavit ballots. Upon any such
27 application, the board or boards of elections have a right to be heard.
28 To obtain such relief, the petitioner must meet the criteria in article
29 sixty-three of the civil practice law and rules and show by clear and
30 convincing evidence, that, because of procedural irregularities or other
31 facts arising during the election, the petitioner will be irreparably
32 harmed absent such relief. For the purposes of this section, allegations
33 that opinion polls show that an election is close is insufficient to
34 show irreparable harm to a petitioner by clear and convincing evidence.
35 6. A proceeding under subdivisions one and three of this section must
36 be instituted within twenty days and under subdivision two, within thir-
37 ty days after the election or alleged erroneous statement or determi-
38 nation was made, or the time when the board shall have acted in the
39 particulars as to which it is claimed to have failed to perform its
40 duty, except that such a proceeding with respect to a village election
41 must be instituted within ten days after such election, statement,
42 determination or action.
43 § 6. Subdivision 4 of section 17-126 of the election law is amended to
44 read as follows:
45 4. Before the closing of the polls, unfolds a ballot that a voter has
46 prepared for voting, except as provided in section 9-209 of this chap-
47 ter, is guilty of a misdemeanor.
48 § 7. Subdivisions 18, 20 and 21 of section 17-130 of the election law
49 are amended to read as follows:
50 18. Not being lawfully authorized, makes or has in his possession a
51 key to a voting [maching] machine which has been adopted and will be
52 used in elections; or,
53 20. Intentionally opens [an absentee] a voter's ballot envelope or
54 examines the contents thereof after the receipt of the envelope by the
55 board of elections and before the close of the polls at the election
56 except as provided in section 9-209 of this chapter; or,
A. 7931 11
1 21. [Wilfully] Willfully disobeys any lawful command of the board of
2 inspectors, or any member thereof; or,
3 § 8. This act shall take effect January 1, 2022 and shall apply to
4 elections held on or after such date; provided, however, that paragraph
5 (h) of subdivision 7 of section 9-209 of the election law, as added by
6 section one of this act, shall take effect January 1, 2023.
