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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. Statements of canvass.

/406. Unofficial ballots.

406a. If voting machine shall become out of order.

407. Opening of 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 poll clerks, ballot clerks, general clerks and canvassing inspectors not to be elected.

419. Number of voters 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 original 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

Consolidators' note.-The provision that a machine "may" be so constructed as to provide facilities for seven different parties is made "must," 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 election 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.

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$393. Adoption of voting machine.

The board of elections of the city of New York and the common council or other legislative governing body of each other city of the first class shall, and the common council or other legislative governing body 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. If, prior to the expiration of thirty days after this section as hereby amended takes effect, such board of elections, common council or legislative governing body, as the case may be, of a city of the first class, shall have failed to agree thereon, the secretary of state, within ten days after such thirty days period, shall adopt a kind or kinds of voting machine for use at elections in such cities, and such board, body or common council shall thereafter provide or continue to provide in the manner prescribed in this article a sufficient number of voting machines so that at the general election in nineteen hundred and twenty-one polling places in such cities to the extent of at least twelve per centum shall be equipped therewith. At least thirtyfive per centum of the polling places in such cities shall be so equipped with voting machines for use at the general election in nineteen hundred and twenty-two. All the remaining polling places in such cities shall be so equipped with voting machines for use at the general election in nineteen hundred and twenty-three. The board of elections of the city of New York or the common council or legislative governing body of any other first class city shall determine, on or before the first day of July, the election districts in which such voting machines shall be installed for the years nineteen hundred and twenty-one and nineteen hundred and twenty-two, but if such board of elections, common council or body are unable to agree upon the districts such determination shall be made by the secretary of state within thirty days thereafter.

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

Amended by L. 1921, ch. 291, in effect April 30, 1921.

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, and a designating letter and number 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 the titles of offices may be arranged horizontally, with the names of candidates for an office arranged vertically under the title of the office, or the titles of offices may be arranged vertically, with the names of candidates for an office arranged horizontally opposite the title of the office. When a person has been nominated for an office by one political party and has also been nominated for that office by one or more independent bodies, his name shall appear only in the row or column containing generally the names of candidates for other offices nominated by such party, and the name and emblem of such party and of each of such independent bodies shall appear in connection with his name. When the same person has been nominated for the same

office to be filled at the election by more than one party, the voting machine shall be so adjusted that his name shall appear in each row or column containing generally the names of candidates for other offices nominated by any such party; and if such candidate has also been nominated by one or more independent bodies, his name shall appear only in each row or column containing generally the names of candidates for other offices nominated by any such party, and the name and emblem of each of such independent bodies shall appear in one such row or column to be designated by the candidate in writing filed with the officer charged with the duty of providing ballots, or if such person shall fail to so designate, the names and emblems of such independent bodies shall appear in such row or column as such officer shall determine. If any person shall be nominated for any office only by one or more independent bodies, his name shall appear but once upon the machine in the place designated by the officer charged with the duty of providing ballots, and in connection with his name there shall appear the name and emblem of each independent body nominating him. The machine shall be so adjusted that when one or more knobs, equaling the total number of persons to be elected to that office shall have been operated, all other knobs used in connection with that office shall be thereby locked.

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, ch. 537; L. 1898, ch. 323; L. 1919, ch. 631; L. 1920, ch. 121; L. 1921, ch. 556, in effect May 4, 1921.

§ 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 such part of the face of the voting machine as shall be in use at that election. Such sample ballots shall be either in full or reduced size and shall contain suitable illustrated directions for voting on the voting machine. 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 such sample ballots of a reduced size, 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 at least once within 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.

Amended by L. 1919, ch. 630, in effect May 14, 1919.

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