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ARTICLE 11.

VOTING MACHINES.

Section 390. State voting machine commissioners.
391. Examination of voting machine.
392. Requirements of voting machine.
393. Adoption of voting machine.

394. Experimental use of voting machine.
395. Providing machines.

396. Payment for machines.

397. Form of ballots.

398. Sample ballots.

399. Number of official ballots.

400. Preparation of voting machine for election.

401. Instruction of election officers.

402. Instruction of voters before election.

403. Independent nominations.

404. Distribution of ballots and stationery.
405. Tally sheets.

406. Unofficial ballots.

407. Opening the polls.

408. Irregular ballots.

409. Location of machines; guard-rail.

410. Manner of voting.

411. Instructing voters.

412. Illiterate or disabled voters.

413. Canvass of vote and proclamation of result.

414. Disposition of irregular ballots; and preserving the record of the

machine.

415. Disposition of keys; opening counter compartment.

416. Provision for re-canvass of vote.

417. Application of other articles and penal law.

418. When ballot clerks not to be elected.

419. Number of votes in election districts.

420. Definitions.

421. Saving clause.

§ 390. State voting machine commissioners.

There shall be a state board of voting machine commissioners which shall consist of three commissioners to be appointed by the governor every five years, one of whom shall be an expert in patent law and two of whom shall be mechanical experts. Their successive terms of office shall begin on the first day of January of every fifth year dating from nineteen hundred and three and end on the thirty-first day of December. Any commissioner now in office or hereafter appointed may be removed at the pleasure of the governor, and vacancies shall be filled by the governor for any unexpired term.

No voting machine commissioner shall have any pecuniary interest in any voting machine.

Derivation: Election Law, § 160, as added by L. 1899, ch. 466, § 1. Consolidators' note. - Rewritten, but substance unchanged. The orig inal section continued the voting machine commissioners appointed under Laws 1897, chapter 450, until December 31, 1902, and provided for their successors. The new section provides for a series of five-year terms, dating from January 1, 1903 (the beginning of the existing tenures), each term ending December 31.

§ 391. Examination of voting machine.

Any person or corporation owning or being interested in any voting machine may apply to the state board of voting machine commissioners to examine such machine and report on its accuracy, efficiency and capacity to register the will of voters. The commissioners shall examine the machine and report accordingly. Their report shall be filed in the office of the secretary of state and shall state whether in their opinion the kind of machine so examined can be safely used by such voters at elections, under the conditions prescribed in this article. If the report states that the machine can be so used, it shall be deemed approved by the commissioners and machines of its kind may be adopted for use at elections as herein provided. When the machine has been so approved, any improvement or change that does not impair its accuracy, efficiency or capacity shall not render necessary a re-examination or re-approval thereof. Any form of voting machine not so approved, or which has not been heretofore examined by said. commissioners and reported on pursuant to law and its use specifically authorized by law, can not be used at any election. Each commissioner is entitled to one hundred and fifty dollars for his compensation and expenses in making such examination and report, to be paid by the person or corporation applying for such examination.

Derivation: Election Law, § 161, as added by L. 1899, ch. 466, § 1, and amended by L. 1901, ch. 530, § 1.

§ 392. Requirements of voting machine.

A voting machine approved by the State board of voting machine commissioners must be so constructed as to provide facilities for voting for such candidates as may be nominated. It must also permit an elector to vote for any person for any office, whether or not nominated as a candidate by any party or organization, and must permit voting in absolute secrecy. Such machines shall also be so constructed that an elector can not vote for a candidate or on a proposition for whom or on which he is not lawfully entitled to vote. It must also be so constructed as to prevent voting for more than one person for the same office, except where an elector is lawfully entitled to vote for more than one person for that office, and it must afford him an opportunity to vote for as many persons for that office as he is by law entitled to vote for and no more, at the same time preventing his voting for the same person twice. It must be provided with a lock or locks. by the use of which immediately after the polls are closed or the operation of such machine for such election is completed, any movement of the voting or registering mechanism is absolutely prevented. It may also be provided with a separate ballot in each party column or row containing only the words "presidential electors" preceded by the party name, and a vote for such ballot shall operate as a vote for all the candidates of such party for presidential electors, and shall be counted as such.

Derivation: Election Law, § 162, as added by L. 1899, ch. 466, § 1, and amended by L. 1901, ch. 530, § 2.

Amended by L. 1911, ch. 649; and L. 1913, ch. 821, in effect Dec. 17, 1913.

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Consolidators' note.-The provision that a machine "may" be so constructed as to provide facilities for seven different parties is made like the rest of the specifications.

Use of ballot machines in voting for presidential electors. Report of Atty.-Gen. (1904), 398.

Use of voting machines.- A voting machine to be used at a general elec. tion must be so constructed and operated as to accurately take and register the will of the voter and it is the duty of the election officers to see that it is competent for that purpose. Matter of Penner (1912), 77 Misc. 634.

$393. Adoption of voting machine.

The board of elections of the city of New York, the common council of any other city, the town board of any town, or the board of trustees of any village may adopt for use at elections any kind of voting machine approved by the state board of voting machine commissioners, or the use of which has been specifically authorized by law; and thereupon such voting machine may be used at any or all elections held in such city, town or village, or in any part thereof, for voting, registering and counting votes cast at such elections. Voting machines of different kinds may be adopted for different districts in the same city, town or village.

Derivation: Election Law, § 163, as added by L. 1899, ch. 466, § 1, and amended by L. 1901, ch. 530, § 3.

A purchase of voting machines by a city involves an appropriation of money and must be accomplished in accordance with the provisions of the city charter. The statute expressly authorizes the local authorities of a city to determine whether or not an expenditure for voting machines shall be made and the taxpayers have no voice in the matter. People ex rel. Voting Machine Co. v. City of Geneva, (1904) 98 App. Div. 383, 90 N. Y. Supp. 275.

Provision where machines break during the progress of the election. Report of Atty.-Gen., (1903) 466.

§ 394. Experimental use of voting machine.

The authorities of a city, town or village authorized by the last section to adopt a voting machine may provide for the experimental use, at an election in one or more districts, of a machine which it might lawfully adopt, without a formal adoption thereof; and its use at such election shall be as valid for all purposes as if it had been lawfully adopted.

Derivation: Election Law, § 164, as added by L. 1899, ch. 466, § 1.

$395. Providing machines.

The local authorities adopting a voting machine shall, as soon as practicable thereafter, provide for each polling place one or more voting machines in complete working order, and shall thereafter preserve and keep them in repair, and shall have the custody thereof and of the furniture and equipment of the polling place when not in use at an election. If it shall be impracticable to supply each and every election district with a voting machine or voting machines at any election following such adoption, as many may be supplied as it is practicable to procure, and the same may be used in such election district or districts within the city, town or village as the officers adopting the same may direct.

Derivation: Election Law, § 165, as added by L. 1899, ch. 466, § 1.

§ 396. Payment for machines.

The local authorities, on the adoption and purchase of a voting machine, may provide for the payment therefor in such manner as they may deem for the best interest of the locality and may for that purpose issue bonds, certificates of indebtedness or other obligations which shall be a charge on the city, town or village. Such bonds, certificates or other obligations may be issued with or without interest, payable at such time or times as the authorities may determine, but shall not be issued or sold at less than par.

Derivation: Election Law, § 166, as added by L. 1899, ch. 466, § 1.

§ 397. Form of ballots.

All ballots shall be printed in black ink on clear, white material, of such size as will fit the ballot frame, and in as plain, clear type as the space will reasonably permit. The party emblem for each political party represented on the machine, which has been duly adopted by such party in accordance with this chapter, and the party name or other designation shall be affixed to the names, or, in case of presidential electors, to the list of candidates of such party. Each party may be further distinguished by a stripe of color below the party emblem, which shall be adopted in the same manner as the party emblem. The order of the lists or names of candidates of the several parties or organizations shall be arranged as provided by this chapter for blanket ballots, except that they may be arranged either vertically or horizontally. When the same person has been nominated for the same office to be filled at the election by more than one party or independent body, all the provisions relating to the official ballot in this chapter shall apply and the voting machine shall be so adjusted that his name shall appear but once on the ballot. But in the case of a person so nominated, the name and emblem of the party casting the highest number of votes for governor at the last preceding election of a governor shall be at the left of or above the names and emblems of other parties and independent bodies uniting in the same nomination, and the names and emblems of the latter parties shall follow in the order of priority based on the relative party vote for governor at such election, counting from left to right if the column be horizontal and downward if the column be vertical.

Derivation: Election Law, § 167, as added by L. 1899, ch. 466, § 1, and amended by L. 1907, ch. 654, § 1.

Amended by L. 1911, ch. 649; L. 1913, ch. 821; L. 1916, eh. 537, in effect May 15, 1916.

§ 398. Sample ballots.

The officers or board charged with the duty of providing ballots for any polling place shall provide therefor two sample ballots which shall be arranged in the form of a diagram showing the entire front of the voting machine as it will appear after the official ballots are arranged for voting on election day. Such sample ballots shall be open to public inspection at such polling place during the election day. In all general elections where voting machines are used there may be furnished a sufficient number of sample ballots of a reduced size, showing the key board of the voting machine as it will appear after the official ballots are arranged for voting on election day, with illustrations and brief instructions how to vote; one of which sample ballots may be mailed by the county clerk to each registered voter at least three days before the election or in lieu thereof, a copy of such sample ballot may be published for one week preceding the election in newspapers representing at least two political parties.

Derivation: Election Law, § 168, as added by L. 1899, ch. 466, § 1, and amended by L. 1901, ch. 530, § 4, and L. 1908, ch. 491, § 1.

PRINTING OF BALLOTS by county clerk where machines are used. Report of Atty. Gen., (1903) 372.

§ 399. Number of official ballots.

Four sets of ballots shall be provided for each polling place for each elestion for use in the voting machine.

DERIVATION: Election Law, § 169, as added by L. 1899, eh. 466, § 1.

$400. Preparation of voting machine for election,

The board of elections for each county and the city of New York in which voting mahines are to be used, shall cause the proper ballot labels to be placed on the machines corresponding with the sample ballots herein provided for, and the machine in every way put in order, set, and arranged, ready for use in voting at such election; and, for the purpose of so labeling, putting in order, setting and arranging the machine, shall employ one or more competent persons who, shall be known as the voting machine custodian, or custodians, who shall be sworn to perform their duties honestly and faithfully, and for such purpose shall be considered as officers of election, and shall be paid for the time spent in the discharge of their duties, in the same manner as election officers are paid. In cities where there are more than twenty voting machines, more than one custodian shall be appointed. They shall be selected from the two political parties entitled to representation on a board of election officers. Said custodian, or custodians, shall, under the direction of said board or officer having charge and control of the election, cause the machine to be so labeled, put in order, set, arranged, and delivered to the polling place of the election district in which the election is to be held, together with all furniture and appliances necessary for the proper conducting of the election, at least one hour before the time set for opening the polls on election day. In preparing a voting machine for an election, the custodian shall, according to the printed directions furnished, arrange the machine and the ballots therefor so that it will in every particular meet the requirements for voting and counting at such election, and thoroughly test the same. Before preparing the voting machine for any election written notice shall be mailed to the chairman of the city, or town committee of at least three of the principal political parties, stating the time and place where machines will be prepared, at which time one representative of each of such political parties, shall be afforded an opportunty to see that the machines are in proper condition for use in the election; such representatives shall be sworn to faithfull perform their duties and shall be regarded as election officials

shall not interfere with the custodians or assume any of their uties. When a machine has been so examined by such representatives it shall be sealed with a numbered metal seal. Such representatives shall certify: to the number of the machine; if all of the

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