enter the voting booth and prepare his ballot without assistance; or any voter in an election district who is not required by law to personally register, who is unable to write by reason of illiteracy, or is physically disabled in one or more ways described in section one hundred and sixty-four of this chapter, and who shall make the statement under oath to the inspectors in the form required in said section, may choose two of the election officers, both of whom shall not be of the same political faith, to enter the booth with him to assist him in preparing his ballots. At any town meeting or village election where the election officers are all of the same political faith, any voter entitled to assistance as herein provided may select one of such election officers and one voter of such town or village of opposite political faith from such election officer so selected, to render such assistance.

Such election offices or persons assisting a voter shall not in any manner request or seek to persuade or induce any such voter to vote any particular ticket, or for any particular candidate, and shall not keep or make any memorandum or entry of anything occurring within such booth, and shall not, directly or indirectly, reveal to any other person the name of any candidate voted for by such voter, or which ticket he has voted, except they be called upon to testify in a judicial proceeding for a violation of this chapter, and each election officer, before the opening of the polls for the election, shall make oath that he "will not in any manner request, or seek to persuade, or induce any voter to vote any particular ticket or for any particular candidate, and that he will not keep or make any memorandum or entry of anything occurring within the booth, and that he will not, directly or indirectly, reveal to any person the name of any candidate voted for by any voter, or which ticket he has voted, or anything occurring within the voting booth, except he be called upon to testify in a judicial proceeding for a violation of the election law." The same oath shall be taken by every voter rendering such assistance, as provided for above, and any violation of this oath shall be a felony punishable upon conviction by imprisonment in a state prison for not less than two nor more than ten years.

No voter shall otherwise ask or receive the assistance of any person within the polling place in the preparation of his ballot, or divulge to any one within the polling place the name of any candidate for whom he intends to vote or has voted.

Derivation: Election Law, § 104, subd. 2.

Cross-References. Inducing voter to vote particular ballot and revealing vote. Penal Law, § 764 (part 5, post). Registration of illiterate and disabled voters. Election Law, § 164.

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Forms. For form of oath to be taken by election officers before opening of polls; form of oath to be administered to illiterate or disabled voters, see Forms (part 12, post).

Elector taking oath entitled to assistance.-"A voter taking the physical disability oath is entitled to the assistance provided." Opinion of Atty. Gen.

Inspectors not judges of kind or extent of disability. — “ The inspectors of election do not seem to be made, in any way by this statute, the judges of the kind or extent of the physical disability' with which the voter is inflicted." The voter himself must, however, declare, under oath, that by reason thereof 'he is unable to prepare his ballot without assistance.' This is quite analogous to the requirements of the general election laws of the State,

that the voter when challenged may take the 'general oath,' and if he persists in his claim to vote, the Court of Appeals has held that it is imperative on the inspectors to receive the vote and deposit the same in the ballot box. See People v. Pease,(1863) 27 N. Y. 53; Goetcheus v. Matthewson et al., (1874) 61 N. Y. 420.

"The statutory provision cited is a new one, but the question suggested is one frequently asked and will necessarily arise before the inspectors of election on election day, and while the construction above indicated may not be entirely free from doubt, yet after the best consideration which I have been able to give the matter I am of the opinion that the statute will be complied with, if the voter so insists, by taking the oath provided.

"The voter must, however, see to it that this declaration is not false, in fact, for if it is he is liable to be prosecuted for perjury; and while we may admit that the inspectors would have no right to inquire into the truth or falsity of the voter's declaration, no such objection exists to the qualifications or authority of a grand jury to make this inquiry." Opinion of Atty.-Gen.

§ 358. Preparation of ballots by voters; intent of voters.

On receiving his ballot the voter shall forthwith and without leaving the inclosed space retire alone, unless he be one that is entitled to assistance in the preparation of his ballot, to one of the voting booths, and without undue delay unfold and mark his ballot as hereafter prescribed. No voter shall be allowed to occupy a booth already occupied by another, or to occupy a booth more than five minutes in case all the booths are in use and voters waiting to occupy the same.

It shall be unlawful to deface or tear an official ballot in any manner; or to erase any printed line, letter or word therefrom; or to erase any name or mark written thereon by a voter. If a voter wrongly mark, deface, or tear a ballot or one of a set of ballots, he may successively obtain others, one set at a time, not exceeding in all three sets, upon returning to the ballot clerks each set of ballots already received.

The voter shall mark his ballot with a pencil having black lead as follows and not otherwise:

1. To vote for any candidate on any ballot, except for an entire group of presidential electors by means of a single mark as hereinafter provided, he shall make a cross X mark in the voting square at the left of the candidate's name.

2. To vote for any candidate not on the ballot, he shall write the candidate's name on a line left blank in the appropriate place.

3. To vote for an entire group of presidential electors, nominated by any party, he shall make a cross X mark in the circle above the party column. If, on a ballot for presidential electors, the voter shall make such mark in the circle above a party column and also before the name of a candidate in such column, or in the voting squares before the names of two or more candidates in such column, without making a voting mark in any voting square of another column and without writing in any name, such individual voting marks shall be treated as surplusage and his vote shall be deemed to have been cast for all of the candidates whose names appear in the party column below such circle. If, however, a ballot for presidential electors shall be so marked in a party circle and in one or more voting squares in the column under such circle and also in any voting square or squares in another column or columns or a name or names be also written in, the vote on a ballot so marked shall only be counted for the candidates so specially indicated.

4. If, on a ballot for presidential electors, the voter shall make a cross X mark in the circle above a party column, and no voting mark in any voting square of the same column, and shall also make a cross X mark in the voting square before the name of a candidate in another party column, or in such squares before the names of two or more candidates in one or more of such other party columns, or writes in a name or names, he shall be deemed to have voted for the candidates whose names are thus specially indicated and also for all of the candidates whose names appear in the column below the circle containing such mark, except those whose names are printed in the latter column on a horizontal line with the names so specially indicated; provided, however, that if the voter shall make a cross X mark in the circle above a party column and also cross X marks in voting squares before any two or more names on the same horizontal line or write a name in a blank space on a horizontal line with one or more names so individually marked, his vote shall be counted only for candidates for the office of presidential elector which, by individual voting marks or by writing, he shall have specially indicated, though there be no such marks in the column under such circle.

5. To vote on any constitutional amendment or question submitted, he shall make a cross X mark in the appropriate voting square at the left of the question as printed on the ballot.

A cross X mark shall consist of any straight line crossing any other straight line, at any angle, within a circle or voting square. Any mark other than a cross X mark or any erasure of any kind shall make the whole ballot void; but no ballot shall be declared void because a cross X mark thereon is irregular in form. Any ballot which is defaced or torn by the voter shall be void. If a voter shall do any act extrinsic to the ballot itself, such as inclosing any paper or other article in the folded ballot, such ballot shall be void. If the elector marks more names than there are persons to be elected to an office, or if for any other reason it is impossible to determine the elector's choice of a candidate for an office to be filled, his vote shall not be counted for such office but shall be returned as a blank vote for such office. Where, in the case of a candidate for governor or member of assembly, the candidate is nominated by two or more political organizations, and the voter makes a cross X mark in two or more voting spaces or squares, his vote for such candidate shall be counted, but he shall not be recorded in the tally sheet or returns as voting with any particular party or independent body for such candidate.

Derivation: Election Law, § 105, as amended by L. 1898, ch. 335, § 6. Amended by L. 1911, ch. 296; L. 1913, ch. 821; L. 1916, ch. 537, in effect May 15, 1916.

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Consolidators' note.- Election Law, § 105, as amended by L. 1898, ch. 335. The voting mark printed × not X; in "if a voter deface or tear a ballot or wrongly marks the same," "marks" made "mark; " "voter" substituted and punctuation improved.

In its old form, Rule 7 has given rise to some unnecessary confusion, for voters have sometimes thought that the requirement that the mark should be "within a circle "required them to mark a "circle" around their voting mark. The occasional printing of the cross in parentheses, thus (X), has added to the confusion. Accordingly "within a circle" has been changed to "within a party circle" to make it perfectly clear that the party circle printed on the ballot is the "circle" referred to.

Cross-references.— Misdemeanors by voters in preparing ballots. Penal Law, § 764 (part 5, post). As to rules for interpreting intent of voter in marking his ballot, see Election Law, § 368, which should be carefully read in connection with this section. Judicial investigation of ballots. Election Law, § 381. Forms. For illustrations showing how to mark ballots, see Forms (part 12, post).

History of the use of ballots at elections in this State pursuant to constitutional and statutory authority outlined and discussed, per De Angelis, J. People ex rel. Karns v. Porter (1917), 176 App. Div. 330, 163 N. Y. Supp. 103. The purpose of the Election Law was to secure secrecy to the voter, and to that end it is imperative that he should strictly pursue the method prescribed by the act for his designation of the person for whom he intends to vote. People ex rel. Wells v. Collin (1897), 19 App. Div. 457, 46 N. Y. Supp. 701, aff'd, 154 N. Y. 750.

The right to vote, secured to the citizen by the Constitution, must be exercised in the manner and subject to the regulations lawfully prescribed by the Legislature in respect to the time when and the method by which his will is expressed; and, in order to render his will and intention effectual at the election, he must comply with at least all the substantial requirements of the law. People ex rel. Sherman v. Person (1892), 64 Hun, 327, 45 N. Y. St. Rep. 528, 19 N. Y. Supp. 297, aff'd, 135 N. Y. 613; People ex rel. Nichols v. Bd. of Canvassers (1892), 129 N. Y. 395, 401.

Intention of voter.- Although the intention of a voter does not control the validity of his ballot, for it may be void by reason of erasures or other defects irrespective of his intention, yet the court under the authority of the statute may consider within narrow limits the intention of the voter in respect of certain pencil marks on a ballot. Thus the court may say that slight pencil marks on a ballot were made by the voter unintentionally, as when handling the ballot, or by accidental contact with the pencil, and such marks are to be distinguished from marks made inentionally. People ex rel. Karns v. Porter (1917), 176 App. Div. 330, 163 N. Y. Supp. 103.

Voter may vote for any person or make up a new ticket.-The Ballot Law was not intended to restrict the choice of the people. The voter may vote for any person for any office. He may make up an entire new ticket. People ex rel. Bradley v. Shaw (1892), 64 Hun, 356, 45 N. Y. St. Rep. 533, 19 N. Y. Supp. 302, aff'd, 133 N. Y. 493.

Voting where name of office omitted by county clerk. It was held under section 104 (L. 1892, ch. 680), that voters might write on their ballots the name of a person for the office which the law required to be filled at the election, where, by mistake or intention, the clerk omitted from the ballot the name of the office. People ex rel. Goring v. President (1894), 144 N. Y. 616, aff'g 9 Misc. 246, 30 N. Y. Supp. 265. This case seems to be superseded by later amendments.

Absence of the name of a candidate from on official ballot wil not deprive the elector of voting for such candidate. Montgomery v. O'Dell (1893), 67 Hun, 169, 51 N. Y. St. Rep. 444, 22 N. Y. Supp. 412, aff'd, 142 N. Y. 665.

The legislative intent was to consider a person whose name was thus written as a candidate, although not named as a candidate on the ballot. Matter of Deitz (1914), 87 Misc. 610, 616, 150 N. Y. Supp. 43.

A voter who, with an honest belief that a vacancy in an office exists, writes upon his ballot the title of such office with the name of the person he desires to fill it, will not be deemed to have so marked his ballot as to destroy its validity. Matter of Murphy (1914), 165 App. Div. 308, 151 N. Y. Supp. 267. Validity of ballots having pencil dots adjacent to voting cross, irregular