the voting square at the left of the name of each candidate for whom he desires to vote. A cross X mark is any straight line crossing any other straight line at any angle within the voting space and no ballot shall be declared void because a cross X mark thereon is irregular in form. It shall not be lawful to make any mark on the ballot other than a cross X mark for the purpose of voting, and such mark shall be made only with a pencil having black lead, and only in the voting space to the left of the name of a candidate; except that the voter may write with a pencil having black lead in the blank space under the title of the proper office or party position the name of any person or persons for whom he desires to vote, whose name or names are not printed upon the ballot, not exceeding with the candidates for whom he has voted by cross X mark the total number of persons by whom such office or position is to be filled. It shall not be lawful to deface or tear a ballot in any manner, nor to erase any printed name, device, figure, word or letter therefrom, nor to erase any mark made thereon by such voter nor inclose in the folded ballot any other paper or any article. If the voter deface or tear a ballot, or wrongly mark the same or make an erasure thereon, he may obtain one additional ballot on returning to the ballot clerk the one so defaced or wrongly marked. Added by L. 1911, ch. 891; and amended by L. 1913, ch. 820; L. 1916, ch. 537, in effect May 15, 1916.

Validity of ballots having pencil dots adjacent to voting cross, irregular crosses, half crosses, excessive crosses and crosses superimposed upon numbers first written. Matter of Garvin (1915), 168 App. Div. 218, 153 N. Y. Supp. 549. § 83. Persons within the guard-rail.

From the time of the opening of the polls, until the result of the canvass of the votes cast thereat shall have been announced, and the official statements of such canvass shall have been signed, the ballot boxes and all voted ballots shall be kept within the guardrail. No person shall be admitted within the guard-rail during such period, except primary election officers, duly authorized watchers, persons admitted by the inspectors to preserve order or enforce the law, and persons duly admitted for the purpose of voting; provided, however, that any candidate voted for may be present at the canvass of the votes.

Derivation: Formerly § 58. Renumbered and amended by L. 1911, ch. 891, § 45, in effect Nov. 15, 1911. Originally revised from Primary Election Law, § 7, subd. 3.

§ 84. Watchers; challengers; electioneering.

The ballot and other boxes used at any primary shall be examined by the inspectors in the presence of the watchers, if any, before any ballots are received. One watcher for each election district may be appointed by any political committee, and by any two or more of the persons whose names are upon any ballot to be voted at such primary election. Such watchers may be present at such

poling place and within the guard-rail from at least fifteen minutes before the examination of any ballot or other box at the opening of the polls of such primary election until after the announcement of the result of the canvass of the votes cast thereat and the signing of the statements thereof by the inspectors. A reasonable number of challengers, at least one person for any three or more persons of cach party holding its primary election at that polling place, whose names are upon any official ballot at such primary election, shall be permitted to remain just outside the guard-rail of each such polling place, where they can plainly see what is done within such rail outside the voting booths, from the opening to the close of the polls thereat. No person shall, while the polls are open, at any polling place do any electioneering within such polling place, or within one hundred feet therefrom, in any pubic street or in any building or room, or in a public manner, and no political banner, poster or placard shall be allowed in or upon such polling place on any primary day.

Derivation: Formerly § 59. Renumbered and amended by L. 1911, ch. 891, § 45; amended by L. 1913, ch. 820, in effect Dec. 17, 1913. Originally revised from Primary Election Law, § 7, subd. 4.

§ 85. Canvass of votes.

As soon as the polls at any official primary election shall close, the primary inspectors shall forthwith publicly canvass and ascertain the result thereof, and they shall not adjourn or postpone the canvass until it shall be fully completed. All questions touching the validity of ballots or their conformity with the provisions of this chapter shall be determined by a majority vote of the primary inspectors. The room in which such canvass is made shall be clearly lighted, and such canvass shall be made in plain view of the public. It shall not be lawful for any person or persons during the canvass, to close, or cause to be closed, the main entrance to the room in which such canvass is conducted, in such manner as to prevent ingress or egress thereby. The primary inspectors shall proceed to canvass the vote by counting the ballots found in the ballot boxes without unfolding them, except so far as to ascer tain that each ballot is single, and by comparing the ballots found in each box with the number shown by the enrollment book to have been deposited therein. If the ballots found in any box shall be more than the number of ballots so shown to have been deposited therein, such ballots shall be replaced, without being unfolded, in the box from which they were taken, and shall be thoroughly mingled therein, and one of the inspectors designated by the board shall, without seeing the same and with his back to the box, publicly draw out as many ballots as shall be equal to such excess, and, without unfolding them, forthwith destroy them. If two or more

60

ELECTION LAW.

ballots shall be found in a ballot box so folded together as to present
the appearance of a single ballot, they shall be destroyed if the
whole number of ballots in such ballot box exceeds the whole num-
ber of ballots shown by the enrollment book to have been deposited
If there lawfully be more than one
therein, and not otherwise.
ballot box for the reception of ballots voted for at any one polling
place, no ballot found in the wrong ballot box shall be rejected,
but shall be counted in the same manner as if found in the proper
box, if such ballots shall not, together with the ballots found in the
proper ballot box, make a total of more ballots than are shown by
the enrollment book to have been deposited in the proper box. The
chairman only of the board of primary officers shall unfold the
ballots taken from a ballot box. When a ballot is not void, and a
primary election inspector or a duly authorized watcher shall, dur-
ing the canvass of the vote, declare his belief that any particular
ballot has been written upon or marked in any way for the pur-
pose of identification, the inspectors shall write on the back of such
ballot "Protested as marked for identification," and shall specify
over their signatures upon the back thereof the mark or markings
The votes upon
upon such ballot, to which objection is made.
each such ballot shall be counted by them as if not so protested.
If any ballots shall be rejected as void, the reason for such rejection
shall be written on the back thereof by the chairman, or by an in-
All ballots rejected as void, and all
spector designated by him.
ballots protested as marked for identification, shall be inclosed in
a separate sealed package, which shall be indorsed on the outside
thereof with the names of the inspectors, the designation of the
election district, and the number and kind of ballots contained
therein. Such package shall be filed by the chairman with the
A statement of the number of
original statement of the canvass.
ballots of any party protested as marked for identification, and of the
number thereof rejected as void, shall be included in each of the state-
ments of the result of the canvass for such party. If requested by
any watcher, the inspector shall, during the canvass, exhibit any and
all ballots cast at such primary election to such watcher, fully opened
and in such condition that he may fully and carefully read and ex-
amine the same, but such inspector shall not allow any such ballot to
be taken from his hands. Any person other than a constituted election
officer who shall handle any ballot voted or unvoted or the stub thereof
shall be guilty of a misdemeanor.

Derivation: Formerly § 60. Renumbered and amended by L. 1911, ch. 891;
amended by L. 1913, ch. 820; L. 1917, ch. 703, in effect June 1, 1917. Originally
revised from Primary Election Law, § 8, subd. 1.

Consolidators note.- "Objected to because marked for identification"
changed to "protested as marked for identification," and "objected to "
changed to "protested," to be uniform with sections 370, 373, 376, 377, 378.
Cross-references.- See also notes to Election Law, §§ 56, 79 and 89.
Marked ballots.-The inspectors of the primary election are not author-
ized to refuse to count ballots objected to as marked for identification

H

8.

but should canvass such ballots and return them as protested ballots. Matter of Crowforth (1908), 58 Misc. 614, 109 N. Y. Supp. 1003.

Upon an application to review an action of the board of inspectors at a primary election, the court will count ballots which are not proved to have been marked for the purpose of identification, when the marks they bear can be as well explained by the assumption that the persons casting the ballots thought it necessary to place the cross marks upon them, as when voting at the general election, as by the assumption that the voter marked them for Matter of Crowforth (1908), 58 Misc. 614, 109 the purpose of identification.

N. Y. Supp. 1003.

Void ballots must be rejected; protested ballots are to be so marked but must be counted. Matter of Rush (1903), 42 Misc. 70, 85 N. Y. Supp. 581. The imprint upon the face and inside of ballots at a primary election "union label" such as is following the names of candidates voted for of a ordinarily used to designate articles manufactured or worked upon by union labor, when it does not appear to have been placed upon the ballots for the purpose of identification, does not render the ballots void nor authorizes their rejection by the board of inspectors. Matter of Peters (1908), 60 Mise. 420, 112 N. Y. Supp. 339.

Use of paster held not a marking for identification where its presence could not be discovered by an inspection of the outside of the ballot. Matter of McDade (1899), 43 App. Div. 303, 60 N. Y. Supp. 333.

Erasure of names and substitution of others, not discoverable from the outside of ballot, also held not to be a marking for identification. Matter of McDade (1899), 43 App. Div. 303, 60 N. Y. Supp. 333.

Canvass of votes by board of elections in city of New York.-The board of elections of the city of New York as custodian of primary records cannot be compelled by the Supreme Court to recount ballots returned by boards of primary inspectors as void and protested, and determine whether or not those ballots alleged to be lawful were counted, and, if not counted, add them to the returns and canvass them. The power of the board of elections in such matters is ministerial only. Matter of Rush (1903), 42 Misc. 70, 85 N. Y. Supp. 581.

Power of court over returns.-A special term has power upon proper application to set aside a canvass of inspectors of primary election, to adjudge the true result, to direct the inspectors to reconvene and make and file a record showing the results adjudged, to nullify the certificate of election, and to direct the issuance of others to candidates entitled thereto at any time before the candidates first declared elected have actually entered into possession of their offices. Matter of Walsh v. Church (1906), 115 App. Div. 82, 100 N. Y. Supp. 764.

Matter of

Written statement of results of a canvass of votes cast at a primary election takes precedence over an oral proclamation of the result. Walsh v. Church (1906), 115 App. Div. 82, 100 N. Y. Supp. 764,

A recanvass of votes at a primary election is unauthorized when it ap pears that a convention has been held and candidates nominated. Matter of Orzel (1910), 140 App. Div. 410, 125 N. Y. Supp. 291.

§ 86. Intent of voters.

If the voter marks more names than there are persons to be nominated for an office or elected to a party position, or if for any other reason it is impossible to determine the voter's choice of a

candidate for a party position or for nomination for an office, his vote shall not be counted therefor but shall be returned as a blank vote for such nomination or party position.

A void ballot is a ballot upon which there shall be found any mark other than a cross X mark made for the purpose of voting, which voting mark must be made with a pencil having black lead, only in a voting space to the left of the name of a candidate; or one upon which anything is written other than the name or names of any person or persons not printed upon the ballot, for whom the voter desires to vote, which must be written in the blank space under the title of the proper office or party position with a pencil having black lead; or one which is defaced or torn by the voter; or one upon which there shall be found any erasure of any printed device, figure, letter or word, or of any name or mark written thereon, by such voter; or in which shall be found inclosed a separate piece of paper or other material; and upon such ballot no vote for any candidate thereon shall be counted. Any straight line crossing any other straight line at any angle within a voting space shall be deemed a valid voting mark; but no ballot shall be declared void because a cross mark thereon is irregular in form.

Added by L. 1911, ch. 891; and amended by L. 1913, ch. 820; L. 1916, ch. in effect May 15, 1916.

Cross-reference.-See note to § 368.

First name of candidate.-Where a voter attempted to write in the name of a candidate not printed on the ballot, the fact that he did not put in the first name of such candidate, while it might make it ineffective as a vote for that candidate, did not make the whole ballot void. Matter of Garvin (App. Div.), N. Y. L. J., June 9, 1915.

87. Proclamation and statement of result.

Immediately upon the completion of such canvass, the board of primary inspectors in each primary district shall make public oral proclamation of the result thereof, and shall make upon the statement of result sheet for each party a written statement of such result for each election district in such primary district, and also a duplicate thereof, which shall be known as the duplicate statement. Immediately after the completion of such statements, such board shall file the originals thereof with the custodian of primary records, and shall file the duplicate statements with the clerk of the city, town or village.

In cities having more than one million inhabitants the board of primary inspectors shall also make and sign a police return of the vote at the primary similar to that required at the general election by section three hundred and seventy-two of this chapter, and such return and its contents shall be treated in the same manner by the same officers as is provided in that section with respect to the statement of the result of the canvass of votes on clection day to be delivered to the police.

Derivation: Formerly § 61, as amended by L. 1909, ch. 240. Renumbered and amended by L. 1911, ch. 891, § 48; and amended by L. 1915, ch. 678, in effect May 22, 1915. Originally revised from Primary Election Law, § 8, subd. 2.

Return by inspectors.-When the inspectors of a primary election have made a correct return of the votes as cast, a purely ministerial act, their functions cease. Matter of Zimmer (1912), 76 Misc. 320.