thereat and is not challenged, or if challenged and the challenge be decided in his favor, one of the ballot clerks shall then deliver to him one official ballot or a set of official ballots, folded by such ballot clerk in the proper manner for voting, which is: First, by bringing the bottom of the ballot up to the perforated line, and second, by folding both sides to the center, or towards the center, in such manner that when folded the face of each ballot shall be concealed, and the printed number on the stub and the indorsement on the back of the ballot shall be visible, so that the stub can be removed without removing any other part of the ballot, and without exposing any part of the face of the ballot below the stub, and so that when folded the ballot shall not be more than four inches wide.

No person other than an inspector or ballot clerk shall deliver to any voter within such guard-rail any ballot, and they shall deliver only such ballots as the voter is legally entitled to vote, and also the sample ballot when the same is asked for.

Derivation: Election Law, § 104, subd. 1.

Cross-references.- Delivery of ballot by a person not a ballot clerk. Penal Law, § 764 (part 5, post). When delivery of ballots must cease. Election Law, § 291.

$357. Assistance to disabled or illiterate voters.

Any voter who shall, at the time of registration, have made oath of illiteracy, as prescribed by section one hundred and sixty-four of this chapter; or who, having been duly registered personally, shall state under oath to the inspectors of election on the day of election that, by reason of some accident, the time and place of which he must specify, or of disease, the nature of which he must also specify, he has, since the day upon which he registered, lost the use of both hands, or become totally blind, or afflicted by such degree of blindness as will prevent him, with the aid of glasses, from seeing the names printed upon the official ballot, or so crippled that he can not enter the voting booth and prepare his ballot without assistance; or any duly registered voter in an election district who is not required by law to register personally, and who did not

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register personally, 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 officers 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 except as herein provided 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.

Amended by L. 1919, ch. 370, in effect May 5, 1919.

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.

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.

§ 357-a. Assistance to physically disabled voters.

If on registration day any duly qualified voter make a claim that he is and on election day the fact of such physical disability be plainly manifest to the inspectors of election in the polling place where such voter is entitled to vote, then in such case such voter

shall be permitted to have the assistance of his or her father, mother, brother, sister, husband, wife or child he may select or designate to aid him in the marking, preparation and casting of his ballot. The poll clerk shall note in the poll book, opposite the name of such voter, the statement "voter obviously physically incapacitated from marking ballot," and the name of the person assisting such voter. Such person 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 he be called upon to testify in a judicial proceeding for a violation of this chapter, and each person before entering the booth to render such assistance shall make an 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 will not keep or make any memorandum or entry of anything occurring within the booth, and will not, directly or indirectly, reveal to any other 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." 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. Any person voting, or offering to vote, who shall falsely pretend or represent to the inspectors of election or any of them, that he is incapacitated to mark or prepare his ballot, for the purpose of being enabled to have the aid and assistance allowed and provided for in the preceding section, shall be guilty

of a misdemeanor, punishable by a fine not exceeding one thousand dollars, or imprisonment not exceeding two years, or both such fine and imprisonment.

Added by L. 1919, ch. 370, in effect May 5, 1919.

§ 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.