NY Elec L § 9-209 (2021)
2021 New York Laws ELN - Election Article 9 - Canvass of Results Title 2 - Canvass by Board of Elections 9-209 - Canvass of Absentee, Military and Special Ballots and Ballots Cast by Voters With Registration Poll Records Missing on Days of Election or Voters Who

§ 9-209. Canvass of absentee, military and special ballots and ballots cast  by  voters  with  registration  poll  records  missing  on days of election or voters who have not had their identity  previously  verified or  who  have  moved after registering. Before completing the canvass of votes cast in any primary, general, special, or other election at  which voters  are  required  to  sign  their  registration poll records before voting, the board of elections shall proceed in the  manner  hereinafter prescribed   to   cast  and  canvass  any  absentee,  military,  special presidential, special federal or other special ballots and  any  ballots voted by voters who moved within the state after registering, voters who are  in  inactive  status,  voters  whose  registration  was incorrectly transferred to another address even though they  did  not  move,  voters whose  registration  poll  records  were  missing  on  the  day  of such election, voters who have not had their  identity  previously  verified, voters  who  submitted  a  voter  registration  application  through the electronic voter registration transmittal system but did not provide the required exemplar signature, and voters whose registration poll  records did  not  show them to be enrolled in the party in which they claimed to be enrolled and voters incorrectly identified as having  already  voted. Each  such  ballot shall be retained in the original envelope containing the voter's affidavit and signature, in which it  is  delivered  to  the board of elections until such time as it is to be cast and canvassed.   1.  (a)  The  board of elections shall designate itself or such of its employees as it shall deem appropriate as a set of poll clerks  to  cast and canvass such ballots, and fix a time and place for their meeting for such  purpose, provided that such meeting shall be no more than fourteen days after a general or special election and no  more  than  eight  days after  a primary election at which such ballots are voted. The board may designate additional sets of poll clerks and if it designates more  than one  such set shall apportion among all such sets the election districts from which such ballots have  been  received,  provided  that  all  such ballots  from  a  single election district shall be assigned to a single set of clerks, and that each such set shall be divided  equally  between representatives  of  the  two  major political parties. Each such set of clerks shall be deemed a central board of  inspectors  for  purposes  of this section.  (b)  At  least five days prior to the time fixed for such meeting, the board shall send notice by first class mail to each candidate, political party, and independent body entitled to have had watchers present at the polls in any election district in the board's jurisdiction. Such  notice shall state the time and place fixed by the board for such canvass.  (c)  Each  such candidate, political party, and independent body shall be entitled to appoint such number  of  watchers  to  attend  upon  each central  board  of  inspectors  as  such  candidate, political party, or independent body was entitled to appoint at such  election  in  any  one election  district  for  which  such  central  board  of  inspectors  is designated to act.   2. (a) (i) Upon assembling at  the  time  and  place  fixed  for  such meeting,  each  central  board  of  inspectors  shall examine, cast, and canvass the envelopes and the ballots therein  contained  as  nearly  as practicable in the following manner:  (A)  If  a  person whose name is on an envelope as a voter has already voted in person at such election, or if his or her name and residence as stated on the envelope are not on a registration  poll  record,  or  the computer  generated  list  of  registered  voters or the list of special presidential voters, or if there is no name on the envelope, or  if  the envelope is not sealed, such envelope shall be laid aside unopened.  (B)  If  there  is  more than one ballot envelope executed by the same voter, the one bearing the later date of execution shall be accepted and the other rejected. If it cannot be determined which envelope bears  the later date, then all such envelopes shall be rejected.  (C)  If  such  person  is  found to be registered and has not voted in person, an inspector shall  compare  the  signature,  if  any,  on  each envelope  with  the  signature, if any, on the registration poll record, the computer generated list of registered voters or the list of  special presidential  voters, of the person of the same name who registered from the same address. If  the  signatures  are  found  to  correspond,  such inspector  shall  certify  thereto by placing his or her initials in the space provided in the computer generated list of registered voters.  (D) If such person is found to be registered  and  has  not  voted  in person,  and  if  no  challenge  is  made, or if a challenge made is not sustained, the envelope shall be opened, the ballot or ballots withdrawn without unfolding, and the ballot or ballots  deposited  in  the  proper ballot box or boxes, or envelopes, provided however that, in the case of a primary election, the ballot shall be deposited in the box only if the ballot is of the party with which the voter is enrolled according to the entry  on  the  back  of  his  or her registration poll record or in the computer generated registration  list;  if  not,  the  ballot  shall  be rejected  without  inspection  or unfolding and shall be returned to the envelope which shall be endorsed "not enrolled."  At  the  time  of  the deposit  of  such  ballot  or  ballots  in  the  box  or  envelopes, the inspectors shall enter the words "absentee vote" or "military  vote"  in the space reserved for the voter's signature on the aforesaid list or in the  "remarks"  space as appropriate, and shall enter the year and month of the election on the same line in the spaces provided therefor.  (E) As each envelope is opened, if one or more of the different  kinds of  ballots  to  be  voted  at  the  election are not found therein, the clerks, or inspectors, shall make a memorandum showing  what  ballot  or ballots  are  missing.  If a ballot envelope shall contain more than one ballot for the same offices, all the ballots in such envelope  shall  be rejected.    When  the casting of such ballots shall have been completed the clerks or inspectors shall ascertain the number of such  ballots  of each  kind which have been deposited in the ballot box by deducting from the number of envelopes opened the number of missing ballots, and  shall make  a return thereof. The number of absentee voters' ballots deposited in the ballot box  shall  be  added  to  the  number  of  other  ballots deposited  in  the  ballot  box, in order to determine the number of all ballots of each kind to be accounted for in the ballot box.  (ii) If the board of inspectors determines that a person was  entitled to  vote  at such election it shall cast and canvass such ballot if such board finds that ministerial error by the board of elections or  any  of its employees caused such ballot envelope not to be valid on its face.  (iii)  If the board of elections determines that a person was entitled to vote at such election, the board shall cast and canvass  such  ballot if  such  board  finds  that  the  voter appeared at the correct polling place, regardless of the fact that the voter may have  appeared  in  the incorrect election district.  (iv)  If  the  board of elections finds that a voter submitted a voter registration  application  through  the  electronic  voter  registration transmittal system and signed the affidavit ballot, the board shall cast and canvass such ballot.  (v) If the board of elections determines that a person was entitled to vote  at  such election, the board shall cast and canvass such ballot if such  board  finds  that  the  voter  substantially  complied  with  the requirements  of  this  chapter.  For  purposes  of  this  subparagraph,  substantially complied shall mean the board can  determine  the  voter's eligibility  based  on  the  statement  of the affiant or records of the board.  (vi)  If  the  board  of  elections  finds  that  the  statewide voter registration list supplies sufficient information to identify  a  voter, failure  by  the voter to include on the envelope the address where such voter was previously registered shall not be  a  fatal  defect  and  the board shall cast and canvass such ballot.   * (vii)  If the board of elections finds that the voter registered (or pre-registered) to vote for the first time pursuant  to  title  nine  of article five of this chapter at least twenty-five days before a primary, appeared at such primary election, and indicated on the affidavit ballot envelope  the intent to enroll in such party, the affidavit ballot shall be cast and counted if the voter is otherwise qualified to vote in  such election.   * NB Effective January 1, 2023  (b)(i)  Such  board  of  inspectors  shall  also  cast and canvass any federal write-in absentee ballots validly cast by an absentee  voter,  a military  voter  or a special federal voter for the offices of president and  vice-president,  United  States  senator  and   representative   in congress.    Such  board  of  inspectors shall also cast and canvass any federal write-in absentee ballots validly cast by a military  voter  for all  questions or proposals, public offices or party positions for which a military voter is otherwise eligible to vote as  provided  in  section 10-104 of this chapter.  (ii)  Federal  write-in  absentee  ballots shall be cast and canvassed only if: (A) an application for an absentee, military or special federal ballot was received from the absentee, military or special federal voter at least thirty days before  election  day;  (B)  the  federal  write-in absentee  ballot  was submitted from inside or outside the United States by a military voter or was submitted from outside the United States by a special federal voter; (C) such ballot  is  received  by  the  board  of elections  not later than thirteen days following the day of election or seven days after a primary election; and (D) the absentee,  military  or special  federal  ballot  which was sent to the voter is not received by the board of elections by the thirteenth day  following  the  day  of  a general or special election or the seventh day after a primary election.  (iii)  If  such  a  federal write-in absentee ballot is received after election day, the envelope in which it is received must contain:  (A)  a cancellation  mark  of  the  United  States  postal service or a foreign country's postal service; (B) a dated endorsement of receipt by  another agency  of  the  United  States government; or (C) if cast by a military voter, the signature and date of the voter and one witness thereto  with a  date  which  is  ascertained  to  be  not  later  than the day of the election.  (iv) If such a federal write-in absentee ballot contains the name of a person or persons in the space provided for a vote for any office,  such ballot shall be counted as a vote for such person or persons. A vote for a  person who is the candidate of a party or independent body either for president or vice-president shall be deemed to be a vote  for  both  the candidates of such party or independent body for such offices. If such a ballot  contains  the  name  of a party or independent body in the space provided for a vote for any office, such ballot shall be deemed to be  a vote  for  the  candidate  or  candidates,  if  any,  of  such  party or independent body for  such  office.  In  the  case  of  the  offices  of president  and  vice-president  a  vote  cast  for  a  candidate, either directly or by writing in the name of a party or independent body, shall also be deemed to be votes for the electors supporting  such  candidate.  Any  abbreviation,  misspelling  or other minor variation in the form of the name of a  candidate  or  a  party  or  independent  body  shall  be disregarded  in determining the validity of the ballot, if the intention can be ascertained.  (c)  The following provisions shall apply to casting and canvassing of all such ballots which are counted by machine and all  other  provisions of  this  chapter  with  respect  to casting and canvassing such ballots which are not inconsistent with this paragraph shall  be  applicable  to such ballots.  (i) Such ballots may be separated into sections before being placed in the counting machine.  (ii)  Any  write-in ballots and any ballots which cannot be counted by the machine shall be counted manually  subject  to  all  the  applicable provisions of this chapter with respect to counting of ballots.  (iii) The record of the vote counted by machine for each candidate and for  and  against  each  ballot  proposal, printed by election district, shall be preserved in the same manner and for the  same  period  as  the returns of canvass for the election.  (d)  Any  person lawfully present may object to the refusal to cast or canvass any ballot on the grounds that the voter is a properly qualified voter of the election district, or in the case of a party  primary  duly enrolled in such party, or to the casting or canvassing of any ballot on the  grounds  that  the  voter  is not a properly qualified voter of the election district, or in the case of a party primary not  duly  enrolled in  such  party, or otherwise not entitled to cast such ballot. When any such objection is made, the central board of inspectors shall  forthwith proceed  to  determine  such  objection  and  reject or cast such ballot according to such determination. If the board cannot  agree  as  to  the validity  of  the  ballot it shall set the ballot aside, unopened, for a period of three days at which time the ballot envelope shall  be  opened and the vote counted unless otherwise directed by an order of the court.  (e)   Upon  completing  the  casting  and  canvassing  of  ballots  as hereinabove provided for any election district,  the  central  board  of inspectors  shall  thereupon,  as  nearly  as  practicable in the manner provided in this chapter for absentee  ballots,  verify  the  number  of ballots so cast, tally the votes so cast, add such tally to the previous tally  of  all  votes  cast  in such election district, and announce the result.   3. (a) Upon the board of elections determination at or before the time of canvass that an absentee ballot affirmation envelope is  unsigned  or that an affirmation ballot envelope signature does not correspond to the registration signature or there is no required witness to a mark or that the  envelope  is returned without an affirmation envelope in the return envelope, the board shall, within one day of such determination, send to the absentee voter's address indicated in the registration records  and, if  different,  the  mailing  address  indicated  on the absentee ballot application, a notice explaining the reason for such rejection  and  the procedure  to cure the rejection. The board shall also contact the voter by either electronic mail or telephone, if such information is available to the board in the voter's registration information, in order to notify the voter of the deficiency and the opportunity and the process to  cure the deficiency.  (b)  The  voter may cure the aforesaid defects by filing a duly signed affirmation  attesting  to  the  same  information   required   by   the affirmation envelope and attesting that the signer of the affirmation is the  same  person who submitted such absentee ballot envelope. The board shall include a form of such affirmation with the notice to  the  voter.  The  affirmation  shall  be  in  a form prescribed by the state board of elections.  (c)  Such cure affirmation shall be filed with the board no later than seven business days after the board's mailing of such curable  rejection notice.  Provided  the  board determines that such affirmation addresses the curable defect, the rejected ballot shall  be  reinstated  and  duly canvassed.  If  the board of elections is split as to the sufficiency of the cure affirmation, such envelope shall be set aside  for  three  days and  then  canvassed  unless  the  board  is directed otherwise by court order.  (d) When the board of elections invalidates a ballot envelope and  the defect  is  not curable, the voter shall be notified by mail sent within three business days of such rejection.   3-a. If an absentee ballot affirmation envelope  is  received  by  the board of elections prior to the election and is found to be unsealed and thus  invalid, the board shall forthwith notify the voter of such defect and notify the voter of other options for voting, and, if time  permits, provide the voter with a new absentee ballot.