Voter may complete act of voting.— A voter who has received his ballots before the closing hour may complete the act of voting. Reports of Atty.Genl., (1897) 221, (1894) 313, (1893) 144. See, also, case cited in note to Election Law, § 291. § 360. When unofficial ballots may be voted. If, for any cause, 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, made as nearly as practicable in the form of the official ballot, may be used. Derivation: Election Law, § 107. Cross-references.- As to provisions for unofficial ballots, see Election Law, § 345. § 361. Challenges. A person may be challenged either when he applies to the ballot clerk for official ballots, or when he offers to an inspector the ballot he intends to vote, or previously by notice to that effect to an inspector by any elector. It shall be the duty of each inspector to challenge every person offering to vote whom he shall know or suspect not to be duly qualified as an elector, and every person whose right to register as an elector was challenged at the time of registration, provided such challenge has not previously been withdrawn. In adition to the foregoing any person may be challenged by any duly appointed watcher or challenger either when he applies to the ballot clerk for official ballots or when he offers to an inspector the ballot he intends to vote or previously by notice to that effect to an inspector. Whenever a person shall apply to the board of inspectors on election day to vote upon the name of a person whose right to register as an elector was challenged, it shall be the duty of the chairman of the board of inspectors or some member of such board to administer to such applicant the preliminary oath prescribed in the next section, and to read to such applicant each question upon the copy of the challenge affidavit signed at the time of registration by the person upon whose name the applicant desires to vote, and the inspectors and watchers shall compare the answers given to such questions with the answers re corded thereto upon the copy of said challenge affidavit, and shall carefully compare the description of the person challenged at the time of registration recorded upon the copy of the challenge affidavit with that of the applicant. If there shall be any material difference or conflict between the answers given by the applicant and the answers recorded upon the copy of the challenge affidavit to the questions printed thereon, or in the description of the person challenged and the applicant, or if the applicant shall refuse to answer any question put to him, or shall refuse to make such oath, his vote shall not be received and the facts thereof shall be recorded in each such case in the challenge record provided for in section three hundred and sixty-four. Derivation: Election Law, § 108, pt. of subd. 1, as amended by L. 1901, eh. 544, § 2. Amended by L. 1910, ch. 428; L. 1911, ch. 649; L. 1916, ch. 537, in effect May 15, 1916. Voters taking oath entitled to vote." Voters answering the questions and taking the oath prescribed are entitled to vote." Opinion of Attorney-General. Voters must take oath.-"A person whose right to vote is challenged on election day must take the oath required by law, notwithstanding any oath he may have taken to procure the registration of his name.' Opinion of AttorneyGeneral. Inspectors of election cannot refuse vote of qualified voter, though his name has already been voted on; and mandamus lies to compel reception of vote. His vote may be challenged and the general oath must then be taken before receiving his vote. People ex rel. Borgia v. Doe, (1905) 109 App. Div. 670, 96 N. Y. Supp. 389. Inspectors of election have no right to refuse to allow a duly qualified and registered elector to vote, solely because some other person has previously voted on his name. People ex rel. Borgia v. Doe, (1905) 109 App. Div. 670, 96 N. Y. Supp. 389. One who offers his vote is legally presumed to be entitled to vote until some facts appear which would raise a contrary presumption. But where it appears by prima facie evidence that a person has never been naturalized, the burden of proving his citizenship is upon the voter. People v. Pease, (1863) 27 N. Y. 45. A deserter from the U. S. military service who has taken the preliminary oath upon being challenged cannot be deprived of his vote unless a duly authenticated record of his conviction of the offense is presented to the board. Goetcheus v. Matthewson, (1874) 61 N. Y. 420. See, also, Report of Atty.-Genl., (1894) 343. Inspectors of election act only ministerially in receiving the vote of electors, and cannot refuse to accept a vote of an elector who takes the required oaths. People v. Pease, (1863) 27 N. Y. 45; Goetcheus v. Matthewson, (1874) 61 N. Y. 420; People ex rel. Stapleton v. Bell, (1890) 119 N. Y. 175; People ex rel. Sherwood v. Board of Canvassers, (1891) 129 N. Y. 372; Matter of Hamilton, (1894) 80 Hun, 511, 30 N. Y. Supp. 499; People ex rel. Borgia v. Doe, (1905) 109 App. Div. 670, 96 N. Y. Supp. 389; People v. Hochstim, (1901) 36 Misc. 562, 73 N. Y. Supp. 626, rev'd 76 App. Div. 25, 78 N. Y. Supp. 638. The decision by a majority of the board of inspectors in his favor is not essential to the reception of the vote of a challenged voter. People ex rel. Stapleton v. Bell, (1890) 119 N. Y. 175. Election officers are liable in damages for asking questions not tending to test the qualifications to vote of a challenged voter and for rejecting his vote upon his refusal to answer such questions. Goetcheus v. Matthewson, (1874) 61 N. Y. 420. Mandamus is proper to compel inspectors to take the vote of a challenged elector who has answered the proper questions and taken the required oaths. But mandamus will not be granted if it appear indisputably upon the application that the elector is not a qualified voter. People v. Pease, (1863) 27 N. Y. 45; Goetcheus v. Matthewson, (1874) 61 N. Y. 420; People ex rel. Stapleton v. Bell, (1890) 119 N. Y. 176; People ex rel. Sherwood v. Board of Canvassers, (1891) 129 N. Y. 360; People ex rel. Horgia v. Doe, (1905) 109 App. Div. 670, 96 N. Y. Supp. 389. The case of People ex rel. Lower v. Donovan, (1892) 63 Hun, 12, 18 N. Y. Supp. 601, holding that a mandamus issued upon election day compelling inspectors to accept a vote is void elsewhere than in the first judicial district, can be no longer applicable as the statute forbidding courts to sit upon election day has been repealed, § 362. Preliminary oath. If any person other than those persons heretofore provided for offering to vote at any election shall be challenged in relation to the right to vote thereat, one of the inspectors shall tender to him the following preliminary oath: "You do swear (or affirm) that you will fully and truly answer all such questions as shall be put to you touching your place of residence and qualifications as an elector." The inspectors or one of them shall then question the person challenged in relation to his name; his place of residence before he came into that election district; his then place of residence; his citizenship; whether he be a native or naturalized citizen, and if the latter, when, where, and in what court, or before what officer he was naturalized; whether he came into the election district for the purpose of voting at that election; how long he contemplates residing in the election district; and all other matters which may tend to test his qualifications as a resident of the election district, his citizenship, or his right to vote at such election at such polling place and in addition to the foregoing provisions, the inspectors or one of them shall ask the person challenged the same questions that were asked of him when he registered. A challenge made by any elector or by any duly appointed watcher or challenger must be acted upon by the board of inspectors as provided in this section. If any person shall refuse to take such preliminary oath when so tendered, or to answer 'fully any such question which may be put to him, his vote shall be rejected. After receiving the answers of the person so challenged, the board of inspectors shall point out to him the qualifications, if any, in respect to which he shall appear to them deficient. DERIVATION: Election Law, 108, pt. of subd. 1, as amended by L. 1901, ch. 544, §2. 363. General oath and additional oaths. If the person so offering to vote shall persist in his claim to vote, and the challenge be not withdrawn, one of the inspectors shall then administer to him the following general oath: "You do swear (or affirm) that you are twenty-one years of age, that you have been a citizen of the United States for ninety days, and an inhabitant of this state for one year next preceding this election, and for the last four months a resident of this county, and for the last thirty days a resident of this election district, and that you have not voted at this election." If the person so offering to vote shall be challenged for causes stated in section two of article two of the constitution of this state, the following additional oath shall be administered by one of the inspectors: "You do swear (or affirm) that you have not received or offered, do not expect to receive, have not paid, offered or promised to pay, contributed, offered or promised to contribute to another, to be paid, or used, any money or other valuable thing, as a compensation or reward for the giving or withholding of a vote at this election, and have not made any promise to influence the giving or withholding of any such vote, and that you have not made, or become directly or indirectly interested in any bet or wager depending upon the result of this election." If the person so offering to vote shall be challenged on the ground of having been convicted of bribery or any infamous crime, the following additional oath shall be administered to him by one of the inspectors: "You do swear (or affirm) that you have not been convicted of bribery or any infamous crime, or if so convicted, that you have been pardoned and restored to all the rights of a citizen." If any person shall refuse to take either oath so tendered his vote shall be rejected, but if he shall take the oath or oaths tendered him, his vote shall be accepted. Derivation: Election Law, § 108, subd. 2. 364. Record of persons challenged. 1. The inspectors of election shall keep a minute of their proceedings in respect to the challenging and administering oaths to persons offering to vote, in which shall be entered by one of them the name of every person who shall be challenged or take either of such oaths, specifying in each case whether the preliminary oath or the general oath, or both. were taken. the close of the election, the inspectors shall add to such minutes a certificate to the effect that the same are all such minutes as to all persons challenged at such election in such district. At 2. In cities and villages having a population of five thousand or more, in addition to the foregoing record, the chairman of each board of inspectors shall, immediately after any election or primary, return to every public officer who has filed with him or a member of his board a list of voters to be challenged, such challenge list with a written statement opposite each name, giving the reason, if the name was voted on, why the board permitted any person to vote thereon, or, if some person applied to vote thereon and was challenged and did not vote, the words "challenged and did not vote; or if no person applied to vote on such name, the words no application." Before making such return such chairman shall sign his name at the foot of each page of such challenge list. 66 Derivation: Election Law, § 108, subd. 3. Amended by L. 1915, ch. 678; L. 1916, ch. 537, in effect May 15, 1916. § 365. Time allowed employees to vote. Any person entitled to vote at an election held within this state, shall on the day of such election be entitled to absent himself from any service or employment in which he is then engaged or employed, for a period of two hours, while the polls of such election are open. If such voter shall notify his employer before the day of such election of such intended 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 consecutive hours while such 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. Derivation: Election Law, § 109. Amended by L. 1918, ch. 32, in effect Mar. 4, 1918. 1 Cross-references.-Refusal to permit employees to attend. Penal Law, § 759 (part 5, post). Intimidation of employees. Penal Law, § 772 (part 5, post). § 366. Canvass of votes; preparation for canvass. 1. Place and time of canvass. As soon as the polls of an election are closed, the inspectors of election thereat shall publicly canvass and ascertain the votes, and not adjourn or postpone the canvass until it shall be fully completed. 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. 2. Ballot clerks. At the close of the polls the ballot clerks shall make up in triplicate in ink a return which shall account for all the official ballots furnished to the election district in which they are serving; they shall count and verify the number of each kind of unused ballots, and enter it upon their returns; they shall then open the box for ballots canceled before delivery and spoiled and returned by voters, separate them into their several kinds, count all ballots of each kind and enter the numbers upon their returns. They shall make the additions and subtractions called for by the returns and prove their figures. In making their returns as aforesaid, the ballot clerks shall use the printed forms supplied to them with the ballots, and they shall carefully insert in all the blank spaces thereon the appropriate names, words and figures according to the directions contained in article nine of this chapter and printed on the forms. Each kind of ballot and each kind of stub shall immediately after they are counted as aforesaid be securely tied in a separate package, and shall be plainly labeled, sealed, and returned to the box from which it was taken, and the box securely locked and sealed. The ballot clerks shall also securely tie all unused ballots in a sealed package. They shall then sign and swear to their returns before one of the inspectors and shall deliver their returns, the boxes, packages, ballots and stubs, together with the keys of the boxes, to the chairman of the board of inspectors. The ballots so sealed and delivered shall be deposited and preserved as ballot boxes are hereinafter required to be deposited and preserved. |