2023 New York Laws › ELN - Election › Article 9 - Canvass of Results › Title 2 - Canvass by Board of Elections › 9-209 - Canvass of Early Mail, Absentee, Military and Special Ballots, and Ballots Cast in Affidavit Envelopes.

§  9-209.  Canvass  of  early  mail,  absentee,  military  and special
ballots, and ballots cast in affidavit envelopes.
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 review, cast and canvass
early  mail,  any  absentee,  military,  special  presidential,  special
federal or other special ballots  and  any  ballots  cast  in  affidavit
envelopes, including ballots cast by voters pursuant to section 8-604 of
this  chapter.  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
reviewed, in order to be cast and canvassed.
1. Central board of canvassers. Within four days of the receipt of  an
early mail, absentee, military or special ballot, the board of elections
shall  designate  itself  or  such  of  its  employees  as it shall deem
appropriate as a set of poll clerks to review such ballot envelopes. 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 when
reviewing ballots, all 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
canvassers for purposes of this section.
2. Review  of  early  mail,  absentee,  military  and  special  ballot
envelopes.  Within  four days of the receipt of an early mail, absentee,
military or special ballot before the election, and within  one  day  of
receipt on or after the election, each central board of canvassers shall
examine the ballot affirmation envelopes as nearly as practicable in the
following manner:
(a)  If  a person whose name is on a ballot envelope as a voter is not
on a registration poll record, the computer-generated list of registered
voters or the list of special presidential voters, or  if  there  is  no
name  on  the  ballot envelope, or if the ballot envelope was not timely
postmarked  or  received,  or  if  the  ballot  envelope  is  completely
unsealed,  such  ballot  envelope shall be set aside unopened for review
pursuant to subdivision eight of this section with a  relevant  notation
indicated  on  the  ballot  envelope  notwithstanding  a split among the
central board  of  canvassers  as  to  the  invalidity  of  the  ballot;
provided,  however,  if the ballot envelope is completely unsealed, such
voter shall receive notice pursuant  to  paragraph  (h)  of  subdivision
three of this section.
(b)  If  there is more than one timely 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 ballot
envelope  bears  the later date, then all such ballot envelopes shall be
rejected. When the board of elections has  issued  a  second  ballot  it
shall  set  aside the first ballot unopened to provide the voter time to
return the second ballot. Notwithstanding the  foregoing,  if  a  ballot
envelope  for  a  voter  was  previously  reviewed  and opened, then the
subsequently received ballot envelope shall be set aside unopened.
(c) If such person is found to be registered,  the  central  board  of
canvassers  shall compare the signature, if any, on each ballot 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

central board of canvassers shall certify thereto in a  manner  provided
by the state board of elections.
(d)  If  such  person  is  found  to be registered and has requested a
ballot, the ballot envelope shall  be  opened,  the  ballot  or  ballots
withdrawn,  unfolded, stacked face down and deposited in a secure ballot
box or envelope. Upon such processing of the ballot, the voter's  record
shall  be  updated  with  a  notation  that indicates that the voter has
already voted in such election.  The  board  of  elections  shall  adopt
procedures, consistent with regulations of the state board of elections,
to  prevent  voters from voting more than once and to secure ballots and
prevent public release of election results prior to election  day.  Such
procedures  shall  be  filed  with the state board of elections at least
ninety days before they shall be effective.
(e) 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 ballot envelope which shall be endorsed "not enrolled".
(f)  If  the  central board of canvassers determines that a person was
entitled to vote at such election it shall prepare  such  ballot  to  be
stacked  face  down  and  deposited  in  a secure ballot box or envelope
consistent with paragraph (d) of this subdivision 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.
(g)  If  the central board of canvassers splits as to whether a ballot
is valid, it shall prepare such ballot to be cast and canvassed pursuant
to this subdivision.
(h) As each ballot envelope is opened, if one or more of the different
kinds of ballots to be voted at the election are not found therein,  the
central board of canvassers, 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 ballot envelope
shall be rejected. When the review  of  such  ballots  shall  have  been
completed, the central board of canvassers shall ascertain the number of
such ballots of each kind which have been deposited in the ballot box by
deducting  from the number of ballot envelopes opened with the number of
missing ballots, and shall make a return thereof. The number of  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.
3. Curing ballots. (a) At the time a ballot  affirmation  envelope  is
reviewed  pursuant  to  subdivision  two  of  this section, the board of
elections shall determine whether it has a curable defect.
(b) A curable defect includes instances where the ballot envelope: (i)
is unsigned; (ii) has a  signature  that  does  not  correspond  to  the
registration signature; (iii) has no required witness to a mark; (iv) is
returned  without  a ballot affirmation envelope in the return envelope;
(v) has a ballot affirmation envelope that is signed by the person  that
has  provided assistance to the voter but is not signed or marked by the
voter; (vi) contains the signature of someone other than the  voter  and
not  of  the  voter;  or (vii) is returned by mail between two and seven
days after the election without a postmark.
(c) The board shall indicate the issue  that  must  be  cured  on  the
ballot  envelope  and, within one day of such determination, send to the
voter's address indicated in the registration records and, if different,
the mailing address  indicated  on  the  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.
(d) The voter may cure the aforesaid defects by filing a  duly  signed
affirmation  attesting  to  the  same information required by the ballot
affirmation envelope and attesting that the signer of the affirmation is
the same person who submitted such ballot envelope;  provided,  however,
that  for the defect described in subparagraph (vii) of paragraph (b) of
this subdivision, such affirmation shall  also  include  an  attestation
that  the  voter  mailed the ballot envelope on or before the day of the
election. 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.
(e) Such cure affirmation shall be received by the board no later than
seven business days after the board's mailing of such curable  rejection
notice  or the day before the election, whichever is later. Provided the
board determines that such affirmation addresses the curable defect, the
rejected ballot shall be reinstated and prepared for canvassing pursuant
to subdivision two of this section. If the board of elections  is  split
as  to  the  sufficiency of the cure affirmation, such envelope shall be
prepared for canvassing pursuant to paragraph (d) of subdivision two  of
this section.
(f)  If  the ballot envelope contains one or more curable defects that
have not been timely cured, the ballot envelope shall be set  aside  for
review pursuant to subdivision eight of this section.
(g) Ballot envelopes are not invalid and do not require a cure if: (i)
a  ballot  envelope  is  undated  or  has the wrong date, provided it is
postmarked on or prior to election day or is otherwise  received  timely
by  the  board  of elections; (ii) the voter signed or marked the ballot
affirmation  envelope  at  a  place  on  the  envelope  other  than  the
designated  signature  line; (iii) a voter used a combination of ink (of
any color) or pencil to complete the ballot envelope; (iv) papers  found
in  the  ballot envelope with the ballot are materials from the board of
elections, such as instructions or an application sent by the  board  of
elections;  (v) an extrinsic mark or tear on the ballot envelope appears
to  be  there  as  a  result  of  the  ordinary  course  of  mailing  or
transmittal; (vi) the ballot envelope is sealed using tape, paste or any
other  binding  agent or device and there is no indication of tampering;
or (vii) the ballot envelope is  partially  unsealed  but  there  is  no
ability to access the ballot.
(h)  When  the  board  of  elections  invalidates a ballot affirmation
envelope and the defect is not curable, the ballot envelope shall be set
aside for review pursuant to subdivision eight of this section  and  the
board shall notify the voter by mail, sent within three business days of
such  rejection,  and  by  either  electronic mail or telephone, if such
information is available  to  the  board  in  the  voter's  registration
information,  and  notify the voter of other options for voting, and, if
time permits, provide the voter with a new ballot.
(i) If a ballot affirmation envelope  is  received  by  the  board  of
elections  prior  to the election and is found to be completely unsealed
and thus invalid, the board shall notify the voter by mail, sent  within
three business days of such determination, and by either electronic mail
or  telephone,  if  such  information  is  available to the board in the
voter's registration information, and notify the voter of other  options
for voting, and, if time permits, provide the voter with a new ballot.
4. Review of federal write-in absentee ballots. (a) Such central board
of canvassers shall review any federal write-in absentee ballots validly
cast  by  an  early mail voter, 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 central board
of  canvassers  shall  also review 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.
(b) Federal write-in absentee ballots shall be deemed valid  only  if:
(i)  an  application  for  an  early mail, absentee, military or special
federal ballot was received from the early mail, absentee,  military  or
special  federal  voter;  (ii)  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; (iii) 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 (iv) the early mail, 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.
(c)  If  such  a  federal  write-in  absentee ballot is received after
election day, the envelope in which it is received must contain:  (i)  a
cancellation  mark  of  the  United  States  postal service or a foreign
country's postal service; (ii) a dated endorsement of receipt by another
agency of the United States government; or (iii) 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.
(d)  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 voter's
intention can be ascertained.
5. Nothing in this section prohibits a representative of a  candidate,
political  party,  or independent body entitled to have watchers present
at the polls in any election district in the board's  jurisdiction  from
observing, without objection, the review of ballot envelopes required by
subdivisions two, three, four, and seven of this section.
6.  Casting  and  canvassing  of  early  mail,  absentee, military and
special ballots. (a) The following provisions shall apply to the casting
and canvassing of  all  valid  ballots  received  before,  on  or  after
election  day  and  reviewed and prepared pursuant to subdivision two of
this section, and all other provisions of this chapter with  respect  to
casting and canvassing such ballots which are not inconsistent with this
subdivision shall be applicable to such ballots.
(b) The day before the first day of early voting, the central board of
canvassers shall scan all valid ballots previously reviewed and prepared
pursuant  to  this  section  as  nearly  as practicable in the following
manner:
(i) Such ballots may be separated into sections before being placed in
the counting machine and scanned;
(ii)  Upon  completion  of  the  scanning  of  such valid ballots, the
scanners used for such purpose shall be secured, and  no  tabulation  of
the  results shall occur until one hour before the close of the polls on
election day. Any ballots scanned during this period shall be secured in
the same manner as voted ballots cast during early voting or on election
day. The board of elections shall adopt procedures to prevent the public
release of election results prior to the close of polls on election  day
and  such  procedures  shall  be  consistent with the regulations of the
state board of elections and shall be filed  with  the  state  board  of
elections at least ninety days before they shall be effective;
(iii) Any valid ballots that cannot be cast on a scanner shall be held
inviolate and unexamined and shall be duly secured until after the close
of  polls  on  election  day  when  such  ballots  shall be examined and
canvassed in a manner consistent with subdivision two of  section  9-110
of this article.
(c)  After the close of the polls on the last day of early voting, the
central board of canvassers shall scan all valid  ballots  received  and
prepared pursuant to this section, and not previously scanned on the day
before  the first day of early voting, in the same manner as provided in
paragraph (b) of this subdivision using the same or different scanners.
(d) In casting and canvassing such ballots, the board shall  take  all
measures necessary to ensure the privacy of voters.
(e)  The  board of elections may begin to obtain tabulated results for
all ballots previously scanned, as required  by  this  subdivision,  one
hour  before  the  scheduled  close  of polls on election day; provided,
however, no unofficial tabulations of election results shall be publicly
announced or released in any manner until after the close  of  polls  on
election  day  at  which  time  such tabulations shall be added into the
election night vote totals.
(f) Upon completing the casting and canvassing of any remaining  valid
ballots  as  hereinabove provided for any election district, the central
board of canvassers shall thereupon, as nearly  as  practicable  in  the
manner  provided  in this article for early mail, absentee, military and
special 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 record the result.
(g) The record of the vote counted by each scanner  and  manually  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.
7.  Post-election  review  and  canvassing  of  affidavit ballots. (a)
Within four business days of the election, the board of elections  shall
review  all affidavit ballots cast in the election. If the central board
of canvassers determines that a person was  entitled  to  vote  at  such
election  it  shall  cast  and  canvass such affidavit ballot; provided,
however, if the board of elections receives one  or  more  timely  early
mail  or absentee ballots from a voter who also cast an affidavit ballot
at a poll site, the last such  timely  early  mail  or  absentee  ballot
received  shall be canvassed and the affidavit ballot shall be set aside
unopened; and provided further, if a voter was issued an early  mail  or
absentee  ballot  and  votes  in  person via an affidavit ballot and the
board does not receive such early mail or absentee ballot, the affidavit

ballot shall be canvassed if the voter is otherwise qualified to vote in
such election.
(b)  Affidavit ballots are valid when cast at a polling site permitted
by law by qualified  voters:  (i)  who  moved  within  the  state  after
registering;  (ii)  who are in inactive status; (iii) whose registration
was incorrectly transferred to another address even though they did  not
move;  (iv)  whose  registration poll records were missing on the day of
such election; (v) who have not had their identity previously  verified;
(vi) whose registration poll records did not show them to be enrolled in
the  party  in  which  they  are  enrolled;  (vii)  who  are incorrectly
identified as having already voted; and (viii) who  have  registered  to
vote pursuant to section 8-604 of this chapter.
(c)  Affidavit  ballots are valid to the extent that ministerial error
by the board of elections or any of its  employees  caused  such  ballot
envelope not to be valid on its face.
(d)  If  the  central board of canvassers determines that a person was
entitled to vote at such election, the board shall cast and canvass such
affidavit ballot if such board  finds  that  the  voter  appeared  at  a
polling  place,  in the correct county, which is designated as a polling
place for the correct assembly district, regardless of the fact that the
voter may have appeared in the incorrect election  district  or  polling
place,   and   regardless  of  whether  the  voter's  name  was  in  the
registration poll record; provided, however,  that  in  the  event  such
ballot  includes  one  or  more  offices  for  which  such person is not
entitled to vote at such election, such ballot shall only  be  cast  and
canvassed  for  the offices for which such person is entitled to vote at
such election.
(e) If the central board of canvassers finds that a voter submitted  a
voter registration application through the electronic voter registration
transmittal  system  pursuant  to  title  eight  of article five of this
chapter and signed the  affidavit  ballot,  the  board  shall  cast  and
canvass  such  affidavit  ballot  if the voter is otherwise qualified to
vote in such election.
(f) If the central board of canvassers determines that  a  person  was
entitled to vote at such election, the board shall cast and canvass such
affidavit  ballot  if  such  board  finds  that  the voter substantially
complied with the requirements of this chapter.  For  purposes  of  this
paragraph,  "substantially  complied" shall mean the board can determine
the voter's eligibility based on the statement of the affiant or records
of the board.
(g) If the central board of canvassers finds that the statewide  voter
registration  list  supplies sufficient information to identify a voter,
failure by the voter to include on the  affidavit  ballot  envelope  the
address  where such voter was previously registered shall not be a fatal
defect and the board shall cast and canvass such affidavit ballot.
(h) (i) If a voter registration application for a person was  received
by  a  board  of  elections  by  the tenth day prior to the election, an
affidavit ballot from the person shall be cast and counted if the  voter
is  otherwise  qualified  to  vote in such election, notwithstanding the
fact that the person's name was omitted from a registration poll  record
or list of registered voters.
(ii)  If  the  central  board  of  canvassers  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 ten 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 canvassed if the voter  is  otherwise
qualified to vote in such election.
(i)  A voter registration submitted by a person registering to vote at
an early voting polling location  pursuant  to  section  8-604  of  this
chapter  shall  be  processed  and  an affidavit ballot from such person
shall be cast and canvassed if the voter is otherwise qualified to  vote
in such election, notwithstanding the fact that the person's name is not
on a registration poll record or list of registered voters.
(j)  When the central board of canvassers determines that an affidavit
ballot is invalid due to a missing signature  on  the  affidavit  ballot
envelope, or because the signature on the affidavit ballot envelope does
not  correspond  to  the  registration  signature, such ballots shall be
subject to the cure procedure in subdivision three of this section.  The
absence  of  a  signature  on  a  registration  poll  record or computer
generated list of registered  voters  shall  not  provide  a  basis  for
rejecting  affidavit ballots submitted pursuant to section 8-604 of this
chapter.
(k) At the meeting required pursuant to paragraph (a)  of  subdivision
eight  of this section, each candidate, political party, and independent
body  shall  be  entitled  to  object  to  the   board   of   elections'
determination  that  an  affidavit ballot is invalid. Such ballots shall
not be counted absent an order of the court. In no  event  may  a  court
order a ballot that has been counted to be uncounted.
* (l)  The  board of elections shall enter information into the ballot
tracking system, as defined in sections 8-414 and 8-712 of this chapter,
to allow a voter who cast a ballot  in  an  early  voting  or  affidavit
envelope to determine if the vote was counted.
* NB There are 2 par l's
* (l)  The  provisions of this subdivision shall apply notwithstanding
any other provision of this chapter.
* NB There are 2 par l's
8. Post-election review of invalid early mail, absentee, military  and
special  ballots.  (a)  Within  four  business days of the election, the
board of elections shall designate itself or such of  its  employees  to
act  as  a central board of canvassers as provided in subdivision one of
this section and meet to  review  early  mail,  absentee,  military  and
special  ballots  determined  to be invalid pursuant to paragraph (a) of
subdivision two of this section, ballot envelopes that were returned  to
the  board as undeliverable, and ballot envelopes containing one or more
curable defects that have not been timely cured.
(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 post-election
review.
(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 canvassers as the candidate, political party, or  inde-
pendent  body  was  entitled  to appoint at the election in any election
district for which the central board of canvassers is designated to act.
(d) Upon assembling at the time and place fixed for such meeting, each
central board of canvassers shall review the ballot envelopes determined
to be invalid and set aside in the review required by subdivision two of
this section, ballot envelopes that were returned as undeliverable,  and
ballot  envelopes  containing  one or more curable defects that have not
been timely cured.
(e) Each such candidate, political party, and independent  body  shall
be  entitled  to  object to the board of elections' determination that a
ballot is invalid. Such ballots shall not be counted absent an order  of

the  court. In no event may a court order a ballot that has been counted
to be uncounted.
9. State board of elections; powers and duties for canvassing of early
mail, absentee, military, special and affidavit ballots. The state board
of  elections  shall  promulgate rules and regulations necessary for the
implementation of  the  provisions  of  this  section.  Such  rules  and
regulations  shall  include,  but  not  be limited to, provisions to (a)
ensure an efficient and fair review process that respects the privacy of
the voter, (b) ensure the security of the central  count  scanners  used
before  election  day,  and  (c) ensure that ballots cast as provided in
this section are canvassed and counted as if cast on election day.