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McKinney's Consolidated laws of New York annotated; with annotations from state and federal courts and state agencies online

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present, and lock them up again empty in such manner that the

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194 ELECTION LAW



§ 195 Conduct of Elections L. 1922, eh. 588

watchers and tlie persons just outside the guard rail may see that
the boxes are empty when re-locked.

9. At the opening of the polls, cause to be made a proclamation
thereof and of the time when the polls will close. '

Derived from f 350 of former Election Law (L. 1909, ch. 22).

Diatanoe markers. — The Election Law makes no provision as to what a dis-
tance marker near a polling place shall contain. It is sufficient if it states
that no electioneering shall be done between the marker and the polling place.
Op. Atty.-Gen. (ISO'S) 245. The attorney-general said: "I do not find any
direction in the Election Law as to what the distance markers shall contain,
or of what they shall be composed. It appears to me that the intention of
the law is that some suitable mark shall be placed at the indicated distance
from the polling place, to the end that all persons shall be apprised of the
boundaries within which they are forbidden to electioneer. In my judgment,
any device which will fully inform the electors and others upon this point
with certainty would be a compliance with the law. Your suggestion of the
following as a proper distance marker: 'Notice. One hundred feet from
the polls; no electioneering between here and the polls,' would, in my judg-
ment, meet the requirements of the law."

§ 196. General provisions as to conduct of elections. 1. The

chairman of the board of inspectors theretofore appointed shall
continue to act as such^ and the inspectors shall act as a board,
and a majority thereof shall decide questions. One inspector
shall receive the ballots from voters voting. If, at any polling
place, the election is conducted by inspectors only, one inspector
shall deliver ballots to voters, and the inspector who receives
the ballots from voters shall be of opposite political faith. Two
inspectors who are not of the same political faith and who are
not assigned to any of the foregoing duties shall have charge of
the registers, subject to inspection thereof by any inspector and
his participation in the decision of any question. Of the in-
spectors in charge of the registers, one shall be assigned to the
duty of comparing the signatures of voters, when that is neces-
sary. Inspectors shall be assigned to the foregoing duties by
the board of inspectors, before the opening of the polls. Such
assignments shall be by lot if a majority cannot agree. The
duties of an inspector may be changed by the board during the
day. If there be clerks as a separate office, the board of in-
spectors may direct a clerk, who is not otherwise engaged, to
perform any duty of an inspector, except to vote upon a question
to be decided by such board; provided, however, that when a
duty is required to be performed by two inspectors who are not
of the same political faith, such duty shall not be performed by
an inspector and clerk of the same political faith. Where an
oath is required or permitted by this article at any election, any
inspector or canvassing inspector may administer it.



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ELECTION LAW 195



Xj. 1922, ch. 688 Conduct of Elections { 195

* III

2. The American flag, furnished by the board of elections)
shall be kept displayed at each polling place throughout the elec-
tion. Instruction cards, distance markers and the mounted
sample ballots shall not be taken down, torn or defaced during
the election. There shall be no smoking in any polling place in
a church or school. While the polls are open no person shall do
any electioneering within the polling place, or within one hun-
dred feet therefrom in any public street, or within such distance
in any place in a public manner ; and no political banner, poster
or placard shall be allowed in or upon the polling place durinpr
the election.

3. Upon application, the inspectors shall give one sample bal-
lot of each kind to any voter entitled to vote the ballot of which
he requests a sample, and he may take it away from the polling
place.

4. The provisions of section one hundred and sixty, concern-
ing the preservation of order and apprehension for crime on a
day of registration, shall apply to a day of election, but a person
taken into custody shall not be prohibited thereby from voting.

5. After a ballot box shall have been locked for the pulposes
of election, it shall not be opened until it is opened at the close
of the polls for purposes of canvass. Each inspector shall be
responsible personally for the custody of each ballot box and it?
contents from the time the election begins until the box is
delivered, according to law, to the person entitled to receive it.

Derived from §§ 79", 84, 314, 315, 333, 352 of former Election Law (L
1909, ch. 22), S' 79 having been added by L. 1911, cb. 891.

Electioneering as misdemeanor: see Penal Law, § 764.

Destruction, concedXment, or suppression of official ballots hy person having
charge of them: see Penal Law, § 760.

Misdemeamx)r to dispUty political posters, etc., in or on registration build-
ings r see Penal Law, S 764.

Misdemeanor to act as inspector without being able to read and write
English or without being otherwise qualified: see Penal Law, § 764.

Misdemeanor for inspector Icnowingly to accept vote from fcrscn not en-
titled to vote: see Penal Law, § 764.

Disobedience of commands of inspectors as misdemeanor: see Penal Law,
J 764.

Inspectors as ministerial officers. — Inspectors of election are merely minis-
terial officers. People v. Board of Canvassers, ( 18^1 ) 129 N. Y. 360, 29 N. K
346, 14 L. R. A. 646; People v. Bell, (1890) 119 N. Y. 175, 23 N. E. 533;
Goetcheus v. Matthewson, (1875) 61 N. Y. 420; People v. Pease, (1863) 27
N. Y. 45; People v. Doe, (1905) 109 App. Div. 670, 96 N. Y. S. 389; Matter
of Hamilton, (1894) 80 Hun 511, 30 N. Y. S. 499.

Necessity of fairness in conduct of primaries. — The prime essential of the
validity of a primary is fairness. Matter of County Clerk, (1897) 21 Misc.
643, 48 N. Y. S. 407, affirmed 20 App. Div. 637, 47 N. Y. S. 1133. As said
in Matter of Broat, (1894) 6 Misc. 445, 27 N. Y. S. 176: "Party caucuses



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196 ELECTION LAW



f 196 Conduct of Elections L. 1922, ch. 688

should be the fair, full and free expression of the party will and such expres-
sion should not be thwarted by sharp practice or thwarted by force or fraud,*
and while it is not to be expected that political caucuses will be conducted
with the order and decorum of a church meeting or a Sunday school, still
fair play and good faith should prevail and a substantial compliance with the
party and state law ibe compelled/*

Inspection and distribution of ballots under old primary law. — The Pri-
mary Election Law, as it stood in 1907, imposed no duty whatever in respect
to inspection or distribution of ballots ; nor did it give any right to an elector
to inspect ballots prepared for another elector, even though sueh elector was
a district committeeman. Matter of Hammond, (1907) 56 Misc. 302, 106
N. Y. &. 589.

§ 196. Watchers and challengers. 1. At any general, special,
town or village election, any party or independent body may
have at any polling place at which, candidates nominated by it
are voted for, not more than two watchers, to be appointed by
the county, assembly district, city, town or village committee of
the party or body.

2. At any primary election, any political committee may have
a watcher, and any two or more candidates whose names are upon
any ballot to be voted at the polling place may have a watcher.

3. The appointment of a watcher or watchers for any election,
including a primary, shall be by a certificate in writing signed
by such candidates or such committee, as the case may be, or by
the chairman or secretary of the committee who is charged with
that duly, which certificate shall be delivered to an inspector.
A committee shall not appoint a watcher for a polling place out^
side the political subdivision for which the committee was con-
stituted.

4. The watchers may be present at the polling place and
within the guard-rail from at least fifteen minutes before the
unlocking and examination of any ballot box, at the opening of
the polls, until after the announcement of the result of the can-
vass and the signing of the inspectors' returns thereof; provided,
however, that with respect to an election othfer than a primary
election not more than one watcher for each party or for each
independent body may be at one time within the guard-rail until
after the closing of the polls.

5. A reasonable number of challengers, at least one person for
each such party or independent body, at an election other than a
primary election, and at a primary election at least one for any
three or more persons of each party whose names are on the party
ballot, shall be permitted to remain just outside of the guard-rail
of each such polling place, where they can see what is done within
such guard-rail, outside of the voting booths, from the opening
to the close of the polls.



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ELECTION LAW , 197



li. 1&22, cli. 588 Conduct of Elections {§ 197, 198

6. Each watcher and challenger must be a qualified voter of

the city or county in which he is to serve.

Derived from §§ 84, 952 of former Election Law (L. 1900, ch. 22).
Misconduct of watchers: see Pknal L^w, §' 762.

§ 197. Location of boxes and ballots; persons within tlie
guard-rail. The boxes and all official ballots shall be kept within
the giiard-rail, and at least six feet therefrom, from the opening
of the polls until the announcement of the result of the canvass
aad the signing of the inspectors' returns thereof. No person
shall be admitted within the guard-rail during such period
except the election officers, authorized watchers, persons admitted
by the inspectors to preserve order or enforce the law, and votera
duly admitted for the purpose of voting; provided, however, that
candidates voted for at the polling place may be within the guard-
rail during the canvass.

Derived from |§ 317, 3i51 of former Election Law (L. 1909, ch. 22).

§ 198. Unofficial ballots; adhesive pasters. If, for any causey

the official ballots shall not be provided as required by law at any
polling place, upon the opening of the polls of an election thereat,
or if the supply of official ballots shall be exhausted before the
polls are closed, unofficial ballots, printed or written, or partly
printed and partly written, made as nearly as practicable in the
form of the official ballot, shall be used. If unofficial ballots are
provided by the board or officer charged with that duty, and are
delivered at the polling place, no unofficial ballots other than those
so provided shall be voted after their delivery at the polling place
and before the supply thereof is exhausted, except by voters who
shall lawfully begin the act of voting before the receipt of such
ballots.

If, by reason of the making of a new nomination or designation
after the printing of the official ballots, adhesive pasters shall
have been provided by the board or officer charged with that duty,
the inspectors or clerks shall affix one of such pasters in the
proper place and in the proper manner upon each official ballot
before the ballot is delivered to a voter.

Derived from §)§ 52, 81, 13'7, 360 of former Election Law (L. 1909, ch.
22) , § 81 being added by L. 1911, ch. 8^1.

Unofficial ballots under former law. — Formerly a voter was not required to
use an official ballot, but might use any ballot conforming in external appear-
ance to the official ballot. Matter of M^Dade, (1899) 43 App. Div. 303, 60
N. Y. S. 333, reversing 29 Misc. 216, 60 N. Y. S. 105.

When unofficial ballots not to be used. — Where there is an abundant supply
of official ballots the election officers should not permit unofficial ballots to be



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198 ELECTION LAW



I 199 Conduct of Elections L. 1922, ch. MS

I ' ■

deposited in the ballot ibox. People v. Beam, (1907) 117 App. Div. 374, 103
N. Y. S. 818.

Ineligibility to hold office. — The Election Law indicates clearly that the
name of no person shall be printed upon the official party ballot at the
primary if the person is ineligible to hold the office for which he has been
designated' for nomination. Matter of Bewley, (1917) 101 Misc. 248, li66
N. Y. S. 930.

Pasters. — Paster ballots were formerly sanctioned as to officers, but not as
to constitutional amendments. Op. Atty.-Gen. (1894) 337. So it was for-
merly held that the use of pasters on ballots to vote for a candidate whose
name was not printed thereon did not render the ballot void. Matter of
McDiade, (1809) 43 App. Biv. 3031, 60 N. Y. S. 333. To the same effect, see
People V. Wappingers Falls, (1896) 144 N. Y. 616, 30 N. E. 641, affirming
(1894) 83 Hun 130, 31 N. Y. S. 218. And similarly under the Ballot Reform
Law (L. 1800, ch. 262, as amended by L. 1891, ch. 296) it was held that
votes for candidates by means of paster ballots were not invulidated by
reason of the fact that the ballots also contained the name of a candidate
for excise commissioner, which should have (been printed on a separate ballot,
as the unauthorized printing of such name upon the ballots did not make
them marked or defective ballots. People v. Shaw, (1802) 64 Hun 356, 45
N. Y. St. Rep. 535, 10 N. Y. S. 302, affirmed (1802) 133 N. Y. 403, 31 N. E.
51'2, 16 L. R. A. 606. Previous to the amendment of the Ballot Reform Law
by L. 1801, ch. 296, ballots were required to contain the names of all town
officers. Under such provision, it was held that a paster containing the Aame
of an excise conunissioner and attached to a general ballot constituted a
valid vote for the commissioner. Montgomery v. O'Dell, (1803) 67 Hun
160, 22 N. Y. S. 412, affirmed (1804) 142 N*. Y. 665, 37 N. E. 570. But after
such amendment a proper legal indorsement was essential to the validity
of an official ballot; and an official excise ballot which was not an official
ballot for other town offices could not be made so by a paster attached thereto.
Accordingly, it was held that where official ballots indorsed " Excise " and
having a paster attached thereto containing the names of candidates for other
offices, were found in the ballot box marked "Town," they were not official
ballots and could not ibe counted. On the same principle, similar ballots
found in the "Excise" ballot box were declared invalid. People v. Person,
(1892) 64 Hun 327, 19 N. Y. S. 297, 45 N. Y. St. Rep. 528, affirmed (1892)
135 N. Y. 613, 32 N. E. 645, 4« N*. Y. St. Rep. 020 mem. Likewise, it was
held that votes cast for an excise commissioner by paster ballots which were
not legally indorsed as excise ballots could not be counted for him. People
V. Shaw, (1892) 64 Hun 356, 45 N. Y. St. Rep. 533, 10 N. Y. S. 302, affirmed
(1802) 1«3 N. Y. 4013, 31 N. E. 512, 16 L. R. A. 606.

§ 199. Disposal of defective, mutilated or spoiled ballots.

If a ballot is found to be defective or mutilated before it is
delivered to the voter, its stub and the stubs of all other ballots
in the set immediately shall be detached and placed in the box for
stubs, by the clerks, or if there be no clerks by the inspector as-
signed to the duty of delivering ballots, and all the ballots of that
set immediately shall be marked *^ canceled," and placed in the
box for spoiled and mutilated ballots'. If a voter returns a ballot
aa defective, mutilated, defaced, or wrongly marked, he shall also
return all the other ballots of the set, if any, and such clerks or
inspector shall likewise remove their stubs*, placing all the stubs
in the box for stubs and all the ballots of the set in the box for



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ELECTION LAW 199



L. 192^ ch. 588 Conduct of ElectionB }i 200,201

spoiled or mutilated ballots, first marking the ballots ** canceled.'*
In each case, the voter shall receive another ballot or set of ballots^
unless not entitled thereto under section two hundred and eight.

Derived from § 3'54 of former Election Law (L. 1909, ch. 22).

§ 200. Time allowed employees to vote. Any person entiiled

to vote at an election shall on the day of election be entitled to
absent himself from any service or employment in which he is
then engaged or employe^, for a period of two hours, while the
polls of the election are open ; provided, however, that this section
shall not apply to a voter on the day of a primary election if there
be two successive hours, while the polls of such election are open,
in which he is not in the service of an employer. If the voter
shall notify his employer before the day of election of such in-
tended absence, and if thereupon two successive hours for such
absence shall be designated by the employer, and such absence
shall be during such designated hours, or if the employer upon the
day of such notice makes no designation, and such absence shall
be during any two successive hours while the polls are open, no
deduction* shall be made from the usual salary or wages of such
voter, .and no other penalty shall be imposed upon him by his
employer by reason of such absence. This section shall be deemed
to include all employees of municipalities.

Derived" from §' 365 of former Election Law (L. 1909, ch. 22).
Town meeting. — This section does not apply to a town meeting, which, ig
governed by section 759 of the Penal Law. Op. Atty.-Oen. ( 1^11 ) 9S*

§ 201. Use of registers, generally; poll-books in certain
cases. All copies of the register in the polling place at a general
or other election for which voters are required to be registered or
at a primary election, shall be referred to, if necessary, to deter-
mine the persons entitled to vote ; but at any such election, includ-
ing a primary election, ballot numbers shall be entered and other
election entries made in only two copies of the register, which, in
a city of over fifteen thousand inhabitants, shall include the copy
used for taking signatures during registration ; provided, however,
that if the election be one for which poll-books are required to be
provided, ballot numbers shall be entered and other entries made
in the two poll-books instead of the registers. In a city of over
fifteen thousand inhabitants, the signatures of voters taken at the
election, and taken at a primary election in the city of New York,
shall be made, or identification numbers entered, in one of the
copies of register having, when the election opens, an unused



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200 ELEOTION LAW



§ 202 Conduct oi Elections L. 1922, ch. d88

signature column, if there be any sucli copy, and otherwise in one
of the poll-books, to be known as the signature poll-book.

New in form but complying with existing practioeu

Records of voters. — " The poll books and the registers are contemx>oraneou8
records of every elector who votes." Matter of Stiles, (1902) 69 App. Diy.
d89, 75 N. Y. S. 27a

§ 202. Proof of identity of voters in cities of over
fifteen thousand inhabitants. In a city of over fifteen thousand
inhabitants, the voter, before receiving a ballot at any election,
other than a primary election, and in a city of over one million
inhabitants also at a primary election, shall sign his name in a
copy of the register containing no signatures made by voters
before the election. A woman married since she registered shall
sign her former name and her present name. At an election, if
any, where separate poll-'books are required to be provided, the
voter, instead of signing the register, shall sign his name in one
of such poll-books to be designated for that purpose. In either
case, such signature shall be made in the column entitled " signa-
ture or statement number of voter," opposite his name as entered
in such register or book. The inspector assigned to the duty of
comparing signatures shall compare the signature so made on eleo-
tion day with the signature made at the time of registration. If
the two signatures so compared are sufficiently similar to identify
them as having been written by the same person, such inspector
shall announce that fact and shall certify thereto by writing his
initials after the voter's signature so made on election day. If,
when he registered, the voter had alleged his inability to sign,
and was permitted to make an identification statement in lien of
signing, then one of the clerks designated by the chairman, or,
if there be no clerks, an inspector so designated, other than the
inspector who receives ballots from voters, shall read to the voter
the same list of questions which were required to be read at the
time of such registration, and such clerk or inspector shall write
the answers* It shall be unlawful for any person to pi'ompt the
voter in answering such questions. The answers given by the
voter before election day shall not be inspected by any one until
all of his answers given on election day shall have been written
down. The inspector or clerk who reads such list of questiaiiB toi
a voter and records his answers, shall sign and date the certificate
at the end of the list so read, which certificate shall be as follows:
" I certify that I have read to the above named voter each of the
foregoing questions and that I have duly recorded his answers as
above to each of such questions." The statements of a voter made



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ELECTION LAW 201



Ih 1922, eh. 688 Conduct of Elections $ 203

m I

before and at the election, respectively, shall then be compared by
the inspectors. Such comparison, and the comparison of a voter's
signature, shall be had in full view of the watchers, and such
voter shall be subject to challenge as* provided in this "article. The
number on the sheet which contains the voter's answers, in the
book known as " identification statements for election day," shall
be entered opposite his name in the copy of the register used for
taking signatures of voters on election day, in the column entitled
" signature or statement number of voter," or in the column so
entitle * of the signature copy of the poll-book when separate poll-
books are required to be provided.

Derived from $ 3<5<5 of former Election Law (L. 1909, ch. 22).

Sisnins o^ poll boaks by electors. — A former statute provided for the
signing of poll t)ookB by electors only in cities having one million or more
inhabitants. It w&s held that such a provision was not uncon&titutional
as being local legislation, as it was an amendment to the (general Election
Law and was not a limitation upon the right of the elective franchise, but
rather a regulation designed to secure its free and untrammeled exercise.
**Such a regulation," said Werner, J., "as would be proper and suflacient
in the villages and towns of the state would prove inadequate and futile
in the larger cities and the same argument applies to a classification of the
various cities upon the basis of population. It may be admitted that some
of the provisions of the statute under consideration, which apply only to
cities of a million or more inhabitants, affect no other voters than those in
the city of New York. If those provisions are deemed necessary in the light
of local conditions, and apply alike to all the voters of the locality, the
general law in which they are embodied is not a private or local bill within
the meaning of the constitution." Likewise, this provision was held to be
unconstitutional as contravening section one of article two of the constitution
which defines in general terms the qualifications of voters, as it prescribed
only qualifications which were already contained in the constitution; nor,
it was held, did it violate section four of article two which imposes* upon
the legislature the duty of enacting laws for ascertaining by proper proofs
the citizens who shall be entitled to the right of suffrage, as it was within
the general scope of such constitutional provision and was a reasonable
regulation. Ahern v. Elder, (1909) 195 N. Y. 493, 88 N. E. 1059, affirming
130 App. Div. 900, 116 N. Y. S. 1108.

§ 203. Assistance to illiterate or disabled voters. 1. A
person entitled to vote may have assistance in voting if (a) at the
time of registration be had made oath of illiteracy or physical
disability as prescribed by section one hundred and sixty-seven and
claims on election day that he is still unable to prepare his ballot
without assistance for the reasons stated in such oath; or (b),



Online LibraryNew York (State)McKinney's Consolidated laws of New York annotated; with annotations from state and federal courts and state agencies → online text (page 23 of 43)