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S01027 Summary:

S01027 Actions:

S01027 Committee Votes:

S01027 Floor Votes:

S01027 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1027--A
            Cal. No. 8
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by  Sens.  GIANARIS, BAILEY, BIAGGI, BRESLIN, BROUK, COMRIE,
          GAUGHRAN, HINCHEY, HOYLMAN, JACKSON, KAPLAN, KAVANAGH, KENNEDY,  MANN-
          ION,  MAY,  MAYER,  PARKER, REICHLIN-MELNICK, RIVERA, SANDERS, SAVINO,
          SERRANO, STAVISKY -- read twice and ordered printed, and when  printed
          to  be  committed  to the Committee on Elections -- reported favorably
          from said committee  and  committed  to  the  Committee  on  Rules  --
          reported  favorably  from  said committee, ordered to a third reading,
          passed by Senate and delivered to the Assembly, recalled, vote  recon-
          sidered,  restored  to  third  reading, amended and ordered reprinted,
          retaining its place in the order of third reading
 
        AN ACT to amend the election law,  in  relation  to  the  canvassing  of
          absentee,  military  and special ballots and ballots cast in affidavit
          envelopes; and to repeal certain provisions of such law related there-
          to
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     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  Section  9-209  of the election law is REPEALED and a new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
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03358-04-1
        S. 1027--A                          2
 
     1  designate  itself  or such of its employees as it shall deem appropriate
     2  as a set of poll clerks to review such ballot envelopes. The  board  may
     3  designate  additional sets of poll clerks and if it designates more than
     4  one  such set shall apportion among all such sets the election districts
     5  from which such ballots have been received, provided that when reviewing
     6  ballots, all ballots from a single election district shall  be  assigned
     7  to  a  single  set  of  clerks,  and that each such set shall be divided
     8  equally between representatives of the two major political parties. Each
     9  such set of clerks shall be deemed a central  board  of  canvassers  for
    10  purposes of this section.
    11    2.  Review of absentee, military and special ballot envelopes.  Within
    12  four days of the receipt of an  absentee,  military  or  special  ballot
    13  before  the  election,  and  within  one  day of receipt on or after the
    14  election, each central board of  canvassers  shall  examine  the  ballot
    15  affirmation envelopes as nearly as practicable in the following manner:
    16    (a)  If  a person whose name is on a ballot envelope as a voter is not
    17  on a registration poll record, the computer-generated list of registered
    18  voters or the list of special presidential voters, or  if  there  is  no
    19  name  on  the  ballot envelope, or if the ballot envelope was not timely
    20  postmarked  or  received,  or  if  the  ballot  envelope  is  completely
    21  unsealed,  such  ballot  envelope shall be set aside unopened for review
    22  pursuant to subdivision eight of this section with a  relevant  notation
    23  indicated  on  the  ballot  envelope  notwithstanding  a split among the
    24  central board  of  canvassers  as  to  the  invalidity  of  the  ballot;
    25  provided,  however,  if the ballot envelope is completely unsealed, such
    26  voter shall receive notice pursuant  to  paragraph  (h)  of  subdivision
    27  three of this section.
    28    (b)  If  there is more than one timely ballot envelope executed by the
    29  same voter, the one  bearing  the  later  date  of  execution  shall  be
    30  accepted and the other rejected. If it cannot be determined which ballot
    31  envelope  bears  the later date, then all such ballot envelopes shall be
    32  rejected. When the board of elections has  issued  a  second  ballot  it
    33  shall  set  aside the first ballot unopened to provide the voter time to
    34  return the second ballot.  Notwithstanding the foregoing,  if  a  ballot
    35  envelope for a voter was previously reviewed and opened, then the subse-
    36  quently received ballot envelope shall be set aside unopened.
    37    (c)  If  such  person  is found to be registered, the central board of
    38  canvassers shall compare the signature, if any, on each ballot  envelope
    39  with  the signature, if any, on the registration poll record, the compu-
    40  ter-generated list of registered voters, or the list of  special  presi-
    41  dential  voters,  of the person of the same name who registered from the
    42  same address. If the signatures are found to  correspond,  such  central
    43  board  of  canvassers  shall certify thereto in a manner provided by the
    44  state board of elections.
    45    (d) If such person is found to  be  registered  and  has  requested  a
    46  ballot, the ballot envelope shall be opened, the ballot or ballots with-
    47  drawn,  unfolded, stacked face down and deposited in a secure ballot box
    48  or envelope. Upon such processing of  the  ballot,  the  voter's  record
    49  shall  be  updated  with  a  notation  that indicates that the voter has
    50  already voted in such election.  The  board  of  elections  shall  adopt
    51  procedures, consistent with regulations of the state board of elections,
    52  to  prevent  voters from voting more than once and to secure ballots and
    53  prevent public release of election results prior to election  day.  Such
    54  procedures  shall  be  filed  with the state board of elections at least
    55  ninety days before they shall be effective.
        S. 1027--A                          3

     1    (e) In the case of a primary election, the ballot shall  be  deposited
     2  in  the  box  only if the ballot is of the party with which the voter is
     3  enrolled according to the entry on the back of his or  her  registration
     4  poll  record or in the computer-generated registration list; if not, the
     5  ballot  shall  be  rejected without inspection or unfolding and shall be
     6  returned to the ballot envelope which shall be endorsed "not enrolled".
     7    (f) If the central board of canvassers determines that  a  person  was
     8  entitled  to  vote  at  such election it shall prepare such ballot to be
     9  stacked face down and deposited in  a  secure  ballot  box  or  envelope
    10  consistent  with  paragraph  (d) of this subdivision if such board finds
    11  that ministerial error by the board of elections or any of its employees
    12  caused such ballot envelope not to be valid on its face.
    13    (g) If the central board of canvassers splits as to whether  a  ballot
    14  is valid, it shall prepare such ballot to be cast and canvassed pursuant
    15  to this subdivision.
    16    (h) As each ballot envelope is opened, if one or more of the different
    17  kinds  of ballots to be voted at the election are not found therein, the
    18  central board of canvassers, shall make a memorandum showing what ballot
    19  or ballots are missing. If a ballot envelope shall contain more than one
    20  ballot for the same offices, all the ballots  in  such  ballot  envelope
    21  shall  be  rejected.  When  the  review  of such ballots shall have been
    22  completed, the central board of canvassers shall ascertain the number of
    23  such ballots of each kind which have been deposited in the ballot box by
    24  deducting from the number of ballot envelopes opened with the number  of
    25  missing  ballots, and shall make a return thereof. The number of voters'
    26  ballots deposited in the ballot box shall be  added  to  the  number  of
    27  other  ballots  deposited  in  the ballot box, in order to determine the
    28  number of all ballots of each kind to be accounted  for  in  the  ballot
    29  box.
    30    3.  Curing ballots.   (a) At the time a ballot affirmation envelope is
    31  reviewed pursuant to subdivision two  of  this  section,  the  board  of
    32  elections shall determine whether it has a curable defect.
    33    (b) A curable defect includes instances where the ballot envelope: (i)
    34  is unsigned; (ii) has a signature that does not correspond to the regis-
    35  tration  signature;  (iii)  has  no  required witness to a mark; (iv) is
    36  returned without a ballot affirmation envelope in the  return  envelope;
    37  (v)  has a ballot affirmation envelope that is signed by the person that
    38  has provided assistance to the voter but is not signed or marked by  the
    39  voter;  or  (vi)  contains the signature of someone other than the voter
    40  and not of the voter.
    41    (c) The board shall indicate the issue  that  must  be  cured  on  the
    42  ballot  envelope  and, within one day of such determination, send to the
    43  voter's address indicated in the registration records and, if different,
    44  the mailing address  indicated  on  the  ballot  application,  a  notice
    45  explaining  the  reason for such rejection and the procedure to cure the
    46  rejection. The board shall also contact the voter by  either  electronic
    47  mail  or telephone, if such information is available to the board in the
    48  voter's registration information, in order to notify the  voter  of  the
    49  deficiency and the opportunity and the process to cure the deficiency.
    50    (d)  The  voter may cure the aforesaid defects by filing a duly signed
    51  affirmation attesting to the same information  required  by  the  ballot
    52  affirmation envelope and attesting that the signer of the affirmation is
    53  the  same  person  who  submitted  such ballot envelope. The board shall
    54  include a form of such affirmation with the notice  to  the  voter.  The
    55  affirmation  shall  be  in  a  form  prescribed  by  the  state board of
    56  elections.
        S. 1027--A                          4
 
     1    (e) Such cure affirmation shall be filed with the board no later  than
     2  seven  business days after the board's mailing of such curable rejection
     3  notice or the day before the election, whichever is later. Provided  the
     4  board determines that such affirmation addresses the curable defect, the
     5  rejected ballot shall be reinstated and prepared for canvassing pursuant
     6  to  subdivision  two of this section. If the board of elections is split
     7  as to the sufficiency of the cure affirmation, such  envelope  shall  be
     8  prepared  for canvassing pursuant to paragraph (d) of subdivision two of
     9  this section.
    10    (f) If the ballot envelope contains one or more curable  defects  that
    11  have  not  been timely cured, the ballot envelope shall be set aside for
    12  review pursuant to subdivision eight of this section.
    13    (g) Ballot envelopes are not invalid and do not require a cure if: (i)
    14  a ballot envelope is undated or has the wrong date, provided it is post-
    15  marked on or prior to election day or is otherwise  received  timely  by
    16  the  board  of  elections;  (ii)  the  voter signed or marked the ballot
    17  affirmation envelope at a place on the envelope other  than  the  desig-
    18  nated  signature  line;  (iii) a voter used a combination of ink (of any
    19  color) or pencil to complete the ballot envelope; (iv) papers  found  in
    20  the  ballot  envelope  with  the  ballot are materials from the board of
    21  elections, such as instructions or an application sent by the  board  of
    22  elections;  (v) an extrinsic mark or tear on the ballot envelope appears
    23  to be there as a result of the ordinary course of mailing  or  transmit-
    24  tal;  or  (vi) the ballot envelope is partially unsealed but there is no
    25  ability to access the ballot.
    26    (h) When the board  of  elections  invalidates  a  ballot  affirmation
    27  envelope and the defect is not curable, the ballot envelope shall be set
    28  aside  for  review pursuant to subdivision eight of this section and the
    29  board shall notify the voter by mail, sent within three business days of
    30  such rejection, and by either electronic  mail  or  telephone,  if  such
    31  information is available to the board in the voter's registration infor-
    32  mation,  and  notify the voter of other options for voting, and, if time
    33  permits, provide the voter with a new ballot.
    34    (i) If a ballot affirmation envelope  is  received  by  the  board  of
    35  elections  prior  to the election and is found to be completely unsealed
    36  and thus invalid, the board shall notify the voter by mail, sent  within
    37  three business days of such determination, and by either electronic mail
    38  or  telephone,  if  such  information  is  available to the board in the
    39  voter's registration information, and notify the voter of other  options
    40  for voting, and, if time permits, provide the voter with a new ballot.
    41    4.  Review  of  federal  write-in absentee ballots.   (a) Such central
    42  board of canvassers shall review any federal write-in  absentee  ballots
    43  validly cast by an absentee voter, a military voter or a special federal
    44  voter  for  the  offices  of president and vice-president, United States
    45  senator and representative in congress.  Such central board  of  canvas-
    46  sers  shall  also  review  any federal write-in absentee ballots validly
    47  cast by a military voter for all questions or proposals, public  offices
    48  or  party  positions for which a military voter is otherwise eligible to
    49  vote as provided in section 10-104 of this chapter.
    50    (b) Federal write-in absentee ballots shall be deemed valid  only  if:
    51  (i)  an  application for an absentee, military or special federal ballot
    52  was received from the absentee, military or special federal voter;  (ii)
    53  the  federal  write-in  absentee  ballot  was  submitted  from inside or
    54  outside the United States by a military  voter  or  was  submitted  from
    55  outside  the United States by a special federal voter; (iii) such ballot
    56  is received by the board of  elections  not  later  than  thirteen  days
        S. 1027--A                          5
 
     1  following  the  day  of election or seven days after a primary election;
     2  and (iv) the absentee, military or special federal ballot which was sent
     3  to the voter is not received by the board of elections by the thirteenth
     4  day  following  the  day of a general or special election or the seventh
     5  day after a primary election.
     6    (c) If such a federal  write-in  absentee  ballot  is  received  after
     7  election  day,  the envelope in which it is received must contain: (i) a
     8  cancellation mark of the United States postal service or a foreign coun-
     9  try's postal service; (ii) a dated endorsement  of  receipt  by  another
    10  agency  of  the United States government; or (iii) if cast by a military
    11  voter, the signature and date of the voter and one witness thereto  with
    12  a  date  which  is  ascertained  to  be  not  later  than the day of the
    13  election.
    14    (d) If such a federal write-in absentee ballot contains the name of  a
    15  person  or persons in the space provided for a vote for any office, such
    16  ballot shall be counted as a vote for such person or persons. A vote for
    17  a person who is the candidate of a party or independent body either  for
    18  president  or  vice-president  shall be deemed to be a vote for both the
    19  candidates of such party or independent body for such offices. If such a
    20  ballot contains the name of a party or independent  body  in  the  space
    21  provided  for a vote for any office, such ballot shall be deemed to be a
    22  vote for the candidate or candidates, if any, of such party or independ-
    23  ent body for such office. In the case of the offices  of  president  and
    24  vice-president  a vote cast for a candidate, either directly or by writ-
    25  ing in the name of a party or independent body, shall also be deemed  to
    26  be  votes  for the electors supporting such candidate. Any abbreviation,
    27  misspelling or other minor variation in the form of the name of a candi-
    28  date or a party or independent body shall be disregarded in  determining
    29  the validity of the ballot, if the voter's intention can be ascertained.
    30    5.  Nothing in this section prohibits a representative of a candidate,
    31  political party, or independent body entitled to have  watchers  present
    32  at  the  polls in any election district in the board's jurisdiction from
    33  observing, without objection, the review of ballot envelopes required by
    34  subdivisions two, three and four of this section.
    35    6. Casting and canvassing of absentee, military and  special  ballots.
    36  (a)  The  following provisions shall apply to the casting and canvassing
    37  of all valid ballots received before,  on  or  after  election  day  and
    38  reviewed  and  prepared pursuant to subdivision two of this section, and
    39  all other provisions  of  this  chapter  with  respect  to  casting  and
    40  canvassing such ballots which are not inconsistent with this subdivision
    41  shall be applicable to such ballots.
    42    (b) The day before the first day of early voting, the central board of
    43  canvassers shall scan all valid ballots previously reviewed and prepared
    44  pursuant  to  this  section  as  nearly  as practicable in the following
    45  manner:
    46    (i) Such ballots may be separated into sections before being placed in
    47  the counting machine and scanned;
    48    (ii) Upon completion of the scanning of such valid ballots, the  scan-
    49  ners  used  for  such purpose shall be secured, and no tabulation of the
    50  results shall occur until one hour before the  close  of  the  polls  on
    51  election  day.   Any ballots scanned during this period shall be secured
    52  in the same manner as voted ballots  cast  during  early  voting  or  on
    53  election  day.  The board of elections shall adopt procedures to prevent
    54  the public release of election results prior to the close  of  polls  on
    55  election  day  and  such  procedures  shall be consistent with the regu-
    56  lations of the state board of elections and  shall  be  filed  with  the
        S. 1027--A                          6
 
     1  state  board  of  elections  at  least  ninety days before they shall be
     2  effective;
     3    (iii) Any valid ballots that cannot be cast on a scanner shall be held
     4  inviolate and unexamined and shall be duly secured until after the close
     5  of  polls  on  election  day  when  such  ballots  shall be examined and
     6  canvassed in a manner consistent with subdivision two of  section  9-110
     7  of this article.
     8    (c)  After the close of the polls on the last day of early voting, the
     9  central board of canvassers shall scan all valid  ballots  received  and
    10  prepared pursuant to this section, and not previously scanned on the day
    11  before  the first day of early voting, in the same manner as provided in
    12  paragraph (b) of this subdivision using the same or different scanners.
    13    (d) In casting and canvassing such ballots, the board shall  take  all
    14  measures necessary to ensure the privacy of voters.
    15    (e)  The  board of elections may begin to obtain tabulated results for
    16  all ballots previously scanned, as required  by  this  subdivision,  one
    17  hour  before  the  scheduled  close  of polls on election day; provided,
    18  however, no unofficial tabulations of election results shall be publicly
    19  announced or released in any manner until after the close  of  polls  on
    20  election  day  at  which  time  such tabulations shall be added into the
    21  election night vote totals.
    22    (f) Upon completing the casting and canvassing of any remaining  valid
    23  ballots  as  hereinabove provided for any election district, the central
    24  board of canvassers shall thereupon, as nearly  as  practicable  in  the
    25  manner  provided  in  this  article  for  absentee, military and special
    26  ballots, verify the number of ballots so cast, tally the votes so  cast,
    27  add  such tally to the previous tally of all votes cast in such election
    28  district, and record the result.
    29    (g) The record of the vote counted by each scanner  and  manually  for
    30  each  candidate  and  for  and  against each ballot proposal, printed by
    31  election district, shall be preserved in the same  manner  and  for  the
    32  same period as the returns of canvass for the election.
    33    7.  Post-election  review  and  canvassing of affidavit ballots.   (a)
    34  Within four business days of the election, the board of elections  shall
    35  review all affidavit ballots cast in the election.  If the central board
    36  of  canvassers  determines  that  a  person was entitled to vote at such
    37  election it shall cast and  canvass  such  affidavit  ballot;  provided,
    38  however,  if the board of elections receives one or more timely absentee
    39  ballots from a voter who also cast an affidavit ballot at a  poll  site,
    40  the last such timely absentee ballot received shall be canvassed and the
    41  affidavit ballot shall be set aside unopened; and provided further, if a
    42  voter was issued an absentee ballot and votes in person via an affidavit
    43  ballot  and the board does not receive such absentee ballot, the affida-
    44  vit ballot shall be canvassed if the voter  is  otherwise  qualified  to
    45  vote in such election.
    46    (b)  Affidavit ballots are valid when cast at a polling site permitted
    47  by law by qualified voters: (i) who moved within the state after  regis-
    48  tering;  (ii)  who  are in inactive status; (iii) whose registration was
    49  incorrectly transferred to another address  even  though  they  did  not
    50  move;  (iv)  whose  registration poll records were missing on the day of
    51  such election; (v) who have not had their identity previously  verified;
    52  (vi) whose registration poll records did not show them to be enrolled in
    53  the  party  in  which  they  are enrolled; and (vii) who are incorrectly
    54  identified as having already voted.
        S. 1027--A                          7
 
     1    (c) Affidavit ballots are valid to the extent that  ministerial  error
     2  by  the  board  of  elections or any of its employees caused such ballot
     3  envelope not to be valid on its face.
     4    (d)  If  the  central board of canvassers determines that a person was
     5  entitled to vote at such election, the board shall cast and canvass such
     6  affidavit ballot if such board finds that  the  voter  appeared  at  the
     7  correct  polling  place,  regardless of the fact that the voter may have
     8  appeared in the incorrect election district and  regardless  of  whether
     9  the voter's name was in the registration poll record.
    10    (e)  If the central board of canvassers finds that a voter submitted a
    11  voter registration application through the electronic voter registration
    12  transmittal system pursuant to title eight of article five of this chap-
    13  ter and signed the affidavit ballot, the board shall  cast  and  canvass
    14  such  affidavit  ballot  if  the voter is otherwise qualified to vote in
    15  such election.
    16    (f) If the central board of canvassers determines that  a  person  was
    17  entitled to vote at such election, the board shall cast and canvass such
    18  affidavit  ballot  if  such  board  finds  that  the voter substantially
    19  complied with the requirements of this chapter.  For  purposes  of  this
    20  paragraph,  "substantially  complied" shall mean the board can determine
    21  the voter's eligibility based on the statement of the affiant or records
    22  of the board.
    23    (g) If the central board of canvassers finds that the statewide  voter
    24  registration  list  supplies sufficient information to identify a voter,
    25  failure by the voter to include on the  affidavit  ballot  envelope  the
    26  address  where such voter was previously registered shall not be a fatal
    27  defect and the board shall cast and canvass such affidavit ballot.
    28    (h) If the central board of canvassers finds that the voter registered
    29  or pre-registered to vote for the first time pursuant to title  nine  of
    30  article five of this chapter at least twenty-five days before a primary,
    31  appeared at such primary election, and indicated on the affidavit ballot
    32  envelope  the intent to enroll in such party, the affidavit ballot shall
    33  be cast and canvassed if the voter is otherwise  qualified  to  vote  in
    34  such election.
    35    (i)  When the central board of canvassers determines that an affidavit
    36  ballot is invalid due to a missing signature  on  the  affidavit  ballot
    37  envelope, or because the signature on the affidavit ballot envelope does
    38  not  correspond  to  the  registration  signature, such ballots shall be
    39  subject to the cure procedure in subdivision three of this section.
    40    (j) At the meeting required pursuant to paragraph (a)  of  subdivision
    41  eight  of this section, each candidate, political party, and independent
    42  body shall be entitled to object to the  board  of  elections'  determi-
    43  nation  that  an  affidavit ballot is invalid. Such ballots shall not be
    44  counted absent an order of the court. In no event may a  court  order  a
    45  ballot that has been counted to be uncounted.
    46    (k)  The  board  of  elections shall enter information into the ballot
    47  tracking system, as defined in section 8-414 of this chapter, to allow a
    48  voter who cast a ballot in an affidavit envelope  to  determine  if  the
    49  vote was counted.
    50    8. Post-election review of  invalid  absentee,  military  and  special
    51  ballots.  (a)  Within  four  business days of the election, the board of
    52  elections shall designate itself or such of its employees to  act  as  a
    53  central  board  of  canvassers  as  provided  in subdivision one of this
    54  section and meet to review absentee, military and special ballots  deter
    55  mined to be invalid pursuant to paragraph (a) of subdivision two of this
    56  section, ballot envelopes that were returned to the board as undelivera-
        S. 1027--A                          8
 
     1  ble, and ballot envelopes containing one or more  curable  defects  that
     2  have not been timely cured.
     3    (b)  At  least five days prior to the time fixed for such meeting, the
     4  board shall send notice by first class mail to each candidate, political
     5  party, and independent body entitled to have had watchers present at the
     6  polls in any election district in the board's jurisdiction. Such  notice
     7  shall state the time and place fixed by the board for such post-election
     8  review.
     9    (c) Each such candidate, political party, and independent  body  shall
    10  be  entitled  to  appoint  such number of watchers to attend  upon  each
    11  central board of canvassers as the candidate, political party, or  inde-
    12  pendent  body  was entitled to appoint at the election  in  any election
    13  district for which the central board of canvassers is designated to act.
    14    (d) Upon assembling at the time and place fixed for such meeting, each
    15  central board of canvassers shall review the ballot envelopes determined
    16  to be invalid and set aside in the review required by subdivision two of
    17  this  section, ballot envelopes that were returned as undeliverable, and
    18  ballot envelopes containing one or more curable defects  that  have  not
    19  been timely cured.
    20    (e)  Each  such candidate, political party, and independent body shall
    21  be  entitled  to  object to the board of elections' determination that a
    22  ballot  is invalid. Such ballots shall not be counted absent an order of
    23  the court. In no event may a court order a ballot that has been  counted
    24  to be uncounted.
    25    9.  State  board  of  elections;  powers  and duties for canvassing of
    26  absentee, military, special and affidavit ballots. The  state  board  of
    27  elections  shall  promulgate  rules  and  regulations  necessary for the
    28  implementation of the provisions of this section. Such rules  and  regu-
    29  lations  shall  include, but not be limited to, provisions to (a) ensure
    30  an efficient and fair review process that respects the  privacy  of  the
    31  voter, (b) ensure the security of the central count scanners used before
    32  election  day,  and  (c)  ensure  that  ballots cast as provided in this
    33  section are canvassed and counted as if cast on election day.
    34    § 2. Section 9-211 of the election law, as amended by chapter  515  of
    35  the  laws  of 2015, subdivision 1 as amended by chapter 5 of the laws of
    36  2019, is amended to read as follows:
    37    § 9-211. Audit of voter verifiable audit records.  1.  Within  fifteen
    38  days  after each general or special election, within thirteen days after
    39  every primary election,  and  within  seven  days  after  every  village
    40  election  conducted by the board of elections, the board of elections or
    41  a bipartisan committee appointed by such board  shall  audit  the  voter
    42  verifiable  audit  records  from  three  percent  of  voting machines or
    43  systems within the jurisdiction  of  such  board.  Such  audits  may  be
    44  performed  manually  or via the use of any automated tool authorized for
    45  such use by the state board of elections which is independent  from  the
    46  voting  system  it  is  being  used to audit. Voting machines or systems
    47  shall be selected for audit through a random, manual process.  At  least
    48  five  days prior to the time fixed for such selection process, the board
    49  of elections shall send notice by first class mail  to  each  candidate,
    50  political party and independent body entitled to have had watchers pres-
    51  ent  at the polls in any election district in such board's jurisdiction.
    52  Such notice shall state  the  time  and  place  fixed  for  such  random
    53  selection  process.  The audit shall be conducted in the same manner, to
    54  the extent applicable, as a canvass of paper  ballots.  Each  candidate,
    55  political  party  or  independent  body  entitled to appoint watchers to
        S. 1027--A                          9
 
     1  attend at a polling place shall be entitled to appoint  such  number  of
     2  watchers to observe the audit.
     3    2.  Within  three  days  of  any election, the board of elections or a
     4  bipartisan committee appointed by such board  shall  audit  the  central
     5  count  ballot  scanners  by  auditing  the ballots from three percent of
     6  election districts that were  tabulated  by  such  scanners  within  the
     7  jurisdiction  of such board by that time. All provisions of this section
     8  shall otherwise apply to such audit. To the  extent  additional  ballots
     9  are  tabulated  through  central count ballot scanners after the initial
    10  audit, three percent of election districts shall thereafter  be  audited
    11  as to the additional ballots tabulated. The certification of the canvass
    12  shall  not  await  the  completion  of  such additional audit; provided,
    13  however, if upon the completion of such additional  audit  the  criteria
    14  are  met  for  the  results of the audit to replace the canvass then the
    15  board of canvassers shall forthwith reconvene and adjust the canvass  as
    16  required.
    17    3.  The  audit  tallies  for  each  voting  machine or system shall be
    18  compared to the tallies recorded by such voting machine or system, and a
    19  report shall be made of such comparison which  shall  be  filed  in  the
    20  office of the state board of elections.
    21    [3.]  4. The state board of elections shall, in accordance with subdi-
    22  vision four of section 3-100 of  this  chapter,  promulgate  regulations
    23  establishing  a  uniform  statewide  standard  to  be  used by boards of
    24  elections to determine when a discrepancy between the audit tallies  and
    25  the voting machine or system tallies shall require a further voter veri-
    26  fiable  record  audit  of  additional  voting  machines  or systems or a
    27  complete audit of all machines or systems within the jurisdiction  of  a
    28  board  of  elections. Any board of elections shall be empowered to order
    29  that any such audit shall be conducted  whenever  any  such  discrepancy
    30  exists.
    31    [4.]  5.  If  a complete audit shall be conducted, the results of such
    32  audit shall be used by the canvassing board in making the  statement  of
    33  canvass  and determinations of persons elected and propositions rejected
    34  or approved. The results of a  partial  voter  verifiable  record  audit
    35  shall not be used in lieu of voting machine or system tallies.
    36    [5.]  6. Notwithstanding subdivision four of this section, if a voting
    37  machine or system is found to have failed to record votes  in  a  manner
    38  indicating an operational failure, the board of canvassers shall use the
    39  voter  verifiable  audit  records  to  determine  the votes cast on such
    40  machine or system, provided such records were not also impaired  by  the
    41  operational failure of the voting machine or system.
    42    § 3. Subdivision 5 of section 7-122 of the election law, as amended by
    43  chapter 411 of the laws of 2019, is amended to read as follows:
    44    5.  There  shall  also  be  a  place  for two board of elections staff
    45  members or inspectors of opposite  political  parties  to  indicate,  by
    46  placing  their  initials  thereon, that they have checked and marked the
    47  voter's poll record and a box  labeled  "BOE  use  only"  for  notations
    48  required  when  the board of elections reviews affirmation ballot envel-
    49  opes pursuant to section 9-209 of this chapter.
    50    § 4. Subdivision 2-a of section 8-302 of the election  law  is  renum-
    51  bered  subdivision  2-b  and  a  new subdivision 2-a is added to read as
    52  follows:
    53    2-a. If a voter's name appears in the  ledger  or  computer  generated
    54  registration list with a notation indicating that the board of elections
    55  has issued the voter an absentee, military or special ballot, such voter
        S. 1027--A                         10
 
     1  shall  not  be  permitted to vote on a voting machine at an early voting
     2  site or on election day but may vote by affidavit ballot.
     3    §  5.  Subdivisions  1, 4 and 5 of section 16-106 of the election law,
     4  subdivision 1 as amended by chapter 659 of the laws of 1994, subdivision
     5  5 as amended by chapter 359 of the laws of 1989, are amended to read  as
     6  follows:
     7    1.  The  [casting or canvassing or] post-election refusal to cast: (a)
     8  challenged ballots, blank ballots, or void  [or  canvass]  ballots;  (b)
     9  absentee, military, special [federal], or federal write-in [or] ballots;
    10  (c)  emergency ballots; and (d) ballots voted in affidavit envelopes [by
    11  persons whose registration poll records were not in the ledger or  whose
    12  names were not on the computer generated registration list on the day of
    13  election or voters in inactive status, voters who moved to a new address
    14  in  the city or county or after they registered or voters who claimed to
    15  be enrolled in a party other than that shown on their registration  poll
    16  record  or  on the computer generated registration list and the original
    17  applications for a military, special federal, federal write-in, emergen-
    18  cy or absentee voter's ballot] may be contested in a  proceeding  insti-
    19  tuted  in  the supreme or county court, by any candidate or the chairman
    20  of any party committee, and by any voter with respect to the refusal  to
    21  cast such voter's ballot, against the board of canvassers of the returns
    22  from  such  district, if any, and otherwise against the board of inspec-
    23  tors of election of such district. If  the  court  determines  that  the
    24  person  who  cast  such ballot was entitled to vote at such election, it
    25  shall order such ballot to be cast and canvassed, including if the court
    26  finds that ministerial error by the board of elections  or  any  of  its
    27  employees caused such ballot envelope not to be valid on its face.
    28    4.  The  court  shall ensure the strict and uniform application of the
    29  election law and shall not permit or require the altering of the  sched-
    30  ule  or  procedures  in  section  9-209 of this chapter but may direct a
    31  recanvass or the correction of an error, or the performance of any  duty
    32  imposed  by  [law]  this  chapter on such a state, county, city, town or
    33  village board of inspectors, or canvassers.
    34    5. In the event  procedural  irregularities  or  other  facts  arising
    35  during  the  election suggest a change or altering of the canvass sched-
    36  ule, as provided for in section 9-209 of this chapter, may be warranted,
    37  a candidate may seek an order for temporary  or  preliminary  injunctive
    38  relief  or  an impound order halting or altering the canvassing schedule
    39  of absentee, military, special  or  affidavit  ballots.  Upon  any  such
    40  application,  the board or boards of elections have a right to be heard.
    41  To obtain such relief, the petitioner must meet the criteria in  article
    42  sixty-three  of  the  civil practice law and rules and show by clear and
    43  convincing evidence, that, because of procedural irregularities or other
    44  facts arising during the election, the petitioner  will  be  irreparably
    45  harmed absent such relief. For the purposes of this section, allegations
    46  that  opinion  polls  show  that an election is close is insufficient to
    47  show irreparable harm to a petitioner by clear and convincing evidence.
    48    6. A proceeding under subdivisions one and three of this section  must
    49  be instituted within twenty days and under subdivision two, within thir-
    50  ty  days  after  the election or alleged erroneous statement or determi-
    51  nation was made, or the time when the board  shall  have  acted  in  the
    52  particulars  as  to  which  it  is claimed to have failed to perform its
    53  duty, except that such a proceeding with respect to a  village  election
    54  must  be  instituted  within  ten  days  after such election, statement,
    55  determination or action.
        S. 1027--A                         11
 
     1    § 6. Subdivision 4 of section 17-126 of the election law is amended to
     2  read as follows:
     3    4.  Before the closing of the polls, unfolds a ballot that a voter has
     4  prepared for voting, except as provided in section 9-209 of  this  chap-
     5  ter, is guilty of a misdemeanor.
     6    §  7. Subdivisions 18, 20 and 21 of section 17-130 of the election law
     7  are amended to read as follows:
     8    18. Not being lawfully authorized, makes or has in  his  possession  a
     9  key  to  a  voting  [maching] machine which has been adopted and will be
    10  used in elections; or,
    11    20. Intentionally opens [an absentee] a  voter's  ballot  envelope  or
    12  examines  the  contents thereof after the receipt of the envelope by the
    13  board of elections and before the close of the  polls  at  the  election
    14  except as provided in section 9-209 of this chapter; or,
    15    21.  [Wilfully]  Willfully disobeys any lawful command of the board of
    16  inspectors, or any member thereof; or,
    17    § 8. This act shall take effect January 1, 2022  and  shall  apply  to
    18  elections  held on or after such date; provided, however, that paragraph
    19  (h) of subdivision 7 of section 9-209 of the election law, as  added  by
    20  section one of this act, shall take effect January 1, 2023.