STATE OF NEW YORK
________________________________________________________________________
1529
2023-2024 Regular Sessions
IN SENATE
January 12, 2023
___________
Introduced by Sen. ORTT -- read twice and ordered printed, and when
printed to be committed 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.
LBD04275-01-3
S. 1529 2
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 amended
49 by chapter 616 of the laws of 2019, is amended to read as follows:
50 2. a. A qualified voter may vote as an absentee voter under this
51 section if during all the hours of voting on the day of an election he
52 or she will be:
53 (1) absent from the county of his or her residence; or
54 (2) unable to appear at the polling place because of illness or phys-
55 ical disability, or duties related to the primary care of one or more
S. 1529 3
1 individuals who are ill or physically disabled, or because he or she
2 will be or is a patient in a hospital; or
3 (3) an inmate or patient of a veteran's administration hospital; or
4 (4) absent from his or her voting residence because he or she is
5 detained in jail awaiting action by a grand jury or awaiting trial, or
6 confined in jail or prison after a conviction for an offense other than
7 a felony, provided that he or she is qualified to vote in the election
8 district of his or her residence[.]; or
9 (5) prohibited from appearing personally at the polling place of the
10 election district in which he or she is a qualified voter because he or
11 she is a level two or level three sex offender and such polling place is
12 located on or within a school or facility for children as the terms
13 "level two and level three sex offender" and "school or facility for
14 children" are defined in section 145.75 of the penal law.
15 b. Each person entitled to vote as an absentee voter pursuant to this
16 section and desirous of obtaining an absentee ballot shall make written
17 application therefor to the district clerk. Application forms for use
18 pursuant to this section shall be in a form prescribed by the state
19 board of elections. The use of any application which is on a form
20 prescribed by the state board of elections shall be acceptable.
21 c. The application for an absentee ballot when filed must contain in
22 each instance the following information:
23 (1) Applicant's full name, date of birth, and residence address,
24 including the street and number, if any, rural delivery route, if any,
25 mailing address if different from the residence address and an address
26 to which the ballot shall be mailed.
27 (2) A statement that the applicant is a qualified and registered
28 voter.
29 (3) A statement, as appropriate, that on the day of such election the
30 applicant expects in good faith to be in one of the following catego-
31 ries:
32 (a) absent from the county of his or her residence; provided, however,
33 if the applicant expects to be absent from such county for a duration
34 covering more than one election and seeks an absentee ballot for each
35 election, he or she shall state the dates when he or she expects to
36 begin and end such absence; or
37 (b) unable to appear at a polling place because of illness or physical
38 disability or duties related to the primary care of one or more individ-
39 uals who are ill or physically disabled; or
40 (c) an inmate or patient of a veteran's administration hospital; or
41 (d) detained in jail awaiting action by a grand jury or awaiting trial
42 or confined in jail or prison after a conviction for an offense other
43 than a felony and stating the place where he or she is so detained or
44 confined[.]; or
45 (e) prohibited from appearing personally at the polling place of the
46 election district in which he or she is a qualified voter because he or
47 she is a level two or level three sex offender and such polling place is
48 located on or within a school or facility for children as the terms
49 "level two and level three sex offender" and "school or facility for
50 children" are defined in section 145.75 of the penal law.
51 d. Where the applicant indicates he or she is prohibited from appear-
52 ing personally at the polling place of the election district in which he
53 or she is a qualified voter because he or she is a level two or level
54 three sex offender and such polling place is located on or within a
55 school or facility for children as the terms "level two and level three
56 sex offender" and "school or facility for children" are defined in
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1 section 145.75 of the penal law such application shall state whether or
2 not the voter is currently under a sentence of imprisonment for a felony
3 or on parole.
4 e. Such application shall include the following statement to be signed
5 by the voter.
6 I hereby declare that the foregoing is a true statement to the best of
7 my knowledge and belief, and I understand that if I make any material
8 false statement in the foregoing statement of application for absentee
9 ballots, I shall be guilty of a misdemeanor.
10 Date.....................Signature of Voter ...........................
11 [e.] f. An applicant whose ability to appear personally at the polling
12 place of the school district of which he or she is a qualified voter is
13 substantially impaired by reason of permanent illness or physical disa-
14 bility and whose registration record has been marked "permanently disa-
15 bled" by the board of elections pursuant to the provisions of the
16 election law shall be entitled to receive an absentee ballot pursuant to
17 the provisions of this section without making separate application for
18 such absentee ballot, and the board of registration upon being advised
19 by the board of elections on or with the list of registered voters that
20 the registration record of a voter is marked "permanently disabled"
21 shall send an absentee ballot to such voter at his or her last known
22 address with a request to the postal authorities not to forward same but
23 to return same in five days in the event that it cannot be delivered to
24 the addressee. The board of education shall determine whether such
25 ballot shall be sent by first class or by certified mail. All such
26 ballots shall be mailed in the same manner as determined by the board of
27 education. The board of registration shall make an appropriate entry on
28 the registration indicating the fact that an absentee ballot has been
29 sent and the date of mailing.
30 [f.] g. An application must be received by the district clerk no
31 earlier than the thirtieth day before the election for which an absentee
32 ballot is sought. If the application requests that the absentee ballot
33 be mailed, such application must be received not later than seven days
34 before the election. If the applicant or his or her agent delivers the
35 application to the district clerk in person, such application must be
36 received not later than the day before the election. The district clerk
37 shall examine each application and shall determine from the information
38 contained therein whether the applicant is qualified under this section
39 to receive an absentee ballot.
40 [g.] h. No later than six days before the election for which an appli-
41 cation has been received and for which the district clerk has determined
42 the applicant to be qualified to vote by absentee ballot the district
43 clerk shall mail, by regular mail, an absentee ballot to each qualified
44 applicant who has applied before such day and who has requested that
45 such absentee ballot be mailed to him or her at the address set forth in
46 his or her application. If the applicant or his or her agent delivers
47 the application to the district clerk in person after the seventh day
48 before the election and not later than the day before the election, the
49 district clerk shall forthwith deliver such absentee ballots for those
50 applicants whom he or she determines are qualified to make such applica-
51 tions and to receive such ballots to such applicants or the agents named
52 in the applications when such applicants or agents appear in the
53 district clerk's office.
S. 1529 5
1 § 6. Subdivision 2 of section 2018-b of the education law, as amended
2 by chapter 46 of the laws of 1992 and paragraph c as amended by chapter
3 26 of the laws of 1994, is amended to read as follows:
4 2. a. An applicant for such an absentee ballot shall submit an appli-
5 cation setting forth (1) his or her name and residence address, includ-
6 ing the street and number, if any, or town and rural delivery route, if
7 any; (2) that he or she is or will be, on the day of the school district
8 election, a qualified voter of the school district in which he or she
9 resides in that he or she is or will be, on such date, over eighteen
10 years of age, a citizen of the United States and has or will have
11 resided in the district for thirty days next preceding such date; and
12 (3) that he or she will be unable to appear to vote in person on the day
13 of the school district election for which the absentee ballot is
14 requested because he or she is, or will be on such day (a) a patient in
15 a hospital, or unable to appear personally at the polling place on such
16 day because of illness or physical disability [or]; (b) because his or
17 her duties, occupation, business, or studies will require him or her to
18 be outside of the county or city of his residence on such day[,]; (c)
19 because he or she will be on vacation outside the county or city of his
20 or her residence on such day; [or,] (d) absent from his or her voting
21 residence because he or she is detained in jail awaiting action by a
22 grand jury or awaiting trial or is confined in prison after conviction
23 for an offense other than a felony; or (e) prohibited from appearing
24 personally at the polling place of the election district in which he or
25 she is a qualified voter because he or she is a level two or level three
26 sex offender and such polling place is located on or within a school or
27 facility for children as the terms "level two and level three sex offen-
28 der" and "school or facility for children" are defined in section 145.75
29 of the penal law.
30 Such application must be received by the district clerk or designee of
31 the trustees or school board at least seven days before the election if
32 the ballot is to be mailed to the voter, or the day before the election,
33 if the ballot is to be delivered personally to the voter.
34 b. (1) Where such duties, occupation, business, or studies are of such
35 a nature as ordinarily to require such absence, a brief description of
36 such duties, occupation, business, or studies shall be set forth in such
37 application.
38 (2) Where such duties, occupation, business, or studies are not of
39 such a nature as ordinarily to require such absence, such application
40 shall contain a statement of the special circumstances on account of
41 which such absence is required.
42 c. Where the applicant expects in good faith to be absent on the day
43 of the election because he or she will be on vacation elsewhere on such
44 day, such application shall also contain the dates upon which he or she
45 expects to begin and end such vacation, the place or places where he or
46 she expects to be on such vacation, the name and address of his or her
47 employer, if any, and if self-employed or retired, a statement to that
48 effect.
49 d. Where the absence is because of detention or confinement to jail,
50 such application shall state whether the voter is detained awaiting
51 action of the grand jury or is confined after conviction for an offense
52 other than a felony.
53 e. Where the applicant indicates that he or she is prohibited from
54 appearing personally at the polling place of the election district in
55 which he or she is a qualified voter because he or she is a level two or
56 level three sex offender and such polling place is located on or within
S. 1529 6
1 a school or facility for children as the terms "level two and level
2 three sex offender" and "school or facility for children" are defined in
3 section 145.75 of the penal law such application shall state whether or
4 not the voter is currently under a sentence of imprisonment for a felony
5 or on parole.
6 f. Where a person is or would be, if he or she were a qualified voter,
7 entitled to apply for the right to vote by absentee ballot under the
8 provisions of this section, his or her spouse, parent or child, if a
9 qualified voter and a resident of the same school district, shall be
10 entitled to vote as an absentee voter upon personally making and signing
11 an application in accordance with the preceding provisions of this
12 subdivision and showing that he or she expects to be absent from the
13 school district on the day of the school district election by reason of
14 accompanying or being with the spouse, child or parent who is or would
15 be, if he or she were a qualified voter, so entitled to apply for the
16 right to vote by absentee ballot, and, in the event no application is
17 made by such spouse, child or parent, such further information as the
18 clerk of the school district or designee of the trustees or school board
19 shall require.
20 [f.] g. Such application shall include the following statement to be
21 signed by the voter.
22 I hereby declare that the foregoing is a true statement to the best of
23 my knowledge and belief, and I understand that if I make any material
24 false statement in the foregoing statement of application for absentee
25 ballots, I shall be guilty of a misdemeanor.
26 Date......................Signature of Voter ...........................
27 [g.] h. The clerk of the school district or a designee of the trustees
28 or school board shall request registration lists from the board of
29 elections pursuant to subdivision three of section 5-612 of the election
30 law for those voters whose registration record has been marked "perma-
31 nently disabled". An applicant whose ability to appear personally at the
32 polling place of the school district of which he or she is a qualified
33 voter is substantially impaired by reason of permanent illness or phys-
34 ical disability and whose registration record has been marked "perma-
35 nently disabled" as determined by the board of elections pursuant to the
36 provisions of this chapter and who has previously applied for an absen-
37 tee ballot shall be entitled to receive subsequent absentee ballots
38 pursuant to the provisions of this section without making separate
39 application for such absentee ballot, and the clerk of the school
40 district or a designee of the trustees or school board shall send an
41 absentee ballot to such voter at his or her last known address with a
42 request to the postal authorities not to forward same but to return same
43 in five days in the event that it cannot be delivered to the addressee.
44 The clerk of the school district or a designee of the trustees or school
45 board shall determine whether such ballot shall be sent by first class
46 or by certified mail. All such ballots shall be mailed in the same
47 manner as determined by the trustees or the board of education.
48 § 7. The election law is amended by adding a new section 17-172 to
49 read as follows:
50 § 17-172. Immunity and defense for poll workers and others related to
51 admittance of sex offenders to polling places. 1. No person shall be
52 civilly liable for refusing admittance of a level two or level three sex
53 offender to a polling place which is or is within a school or facility
S. 1529 7
1 for children as those terms are defined in section 145.75 of the penal
2 law, when such person is acting in good faith and in the performance of
3 their duties. For the purposes of this section, a person shall be deemed
4 to be acting in good faith if the name and address or name and approxi-
5 mate address based on zip code of the voter refused admission appears on
6 a list of level two or level three sex offenders provided by a board of
7 elections or the division of criminal justice services.
8 2. It shall be an affirmative defense to any charge of violating the
9 elective franchise of a voter based upon the refusing of admittance of a
10 level two or level three sex offender to a polling place which is or is
11 within a school or facility for children as those terms are defined in
12 section 145.75 of the penal law, that the name and address or name and
13 approximate address based on zip code of the voter refused admission
14 appears on a list of level two or level three sex offenders provided by
15 a board of elections or the division of criminal justice services.
16 § 8. This act shall take effect immediately and shall apply to
17 elections held on and after January 1, 2024. Effective immediately, the
18 addition, amendment and/or repeal of any rule or regulation necessary
19 for the implementation of this act on its effective date are authorized
20 to be made and completed on or before such effective date.
