3. Poll clerks. Immediately upon the close of the polls the poll clerks shall assist the inspectors of election in comparing the pollbooks or comparing such books with the registers, as the case may be, as hereinafter provided, and shall make out in triplicate in ink and sign and swear to their returns before one of the inspectors of elections according to the forms provided, and deliver them to the chairman.

4. Order of canvassing. The ballot boxes shall then, and not before, be opened and the ballots shall be canvassed, in the following order:

First. The box, if any, containing presidential ballots.

Second. The box, if any, containing general ballots; and

Third. The boxes, if any, containing ballots upon constitutional amendments or other questions submitted, including town questions. Derivation: Election Law, § 110, pt. of subd. 1, as amended by L. 1898, ch. 335, § 7.

Amended by L. 1913, ch. 821; L. 1919, ch. 504, in effect Oct. 1, 1919.

Consolidators' note.- The body of the subdivision is here divided into sections 366 and 367, but the last sentence, providing that the chairman only shall unfold ballots, has been put into section 369 with other provisions governing the canvass of the ballots.

A tally sheet is an essential part of the canvass. Matter of Stewart (1897), 24 App. Div. 201, 48 N. Y. Supp. 957, aff'd 155 N. Y. 545.

366-a. Special provision as to preparation for canvass in a city of over one million inhabitants.

In a city of over one million inhabitants, at the close of the polls, the ballot clerks shall immediately make and verify the ballot clerks' return and perform the other duties prescribed by subdivision two of section three hundred and sixty-six. In such city, the comparison of the poll books with the registers, provided for in section three hundred and sixty-seven, shall be made by the inspectors and poll clerks who attended during the taking of the vote, and they shall remain after the close of the polls for that purpose. Such inspectors and poll clerks shall subscribe and deliver to the canvassing inspectors a certificate, in triplicate, on a form to be provided by the board of elections, of the total number of persons who voted at the polling place as appears from the poll books and registers after correcting mistakes, if any, therein. Upon the completion of the foregoing duties, and the organization of the canvassing inspectors by the selection of a chairman and designa

tion of poll clerks from their number, the inspectors, poll clerks and ballot clerks who attended at the taking of the vote shall retire; and thereupon the canvassing inspectors shall have charge of all ballots, ballot boxes, with their keys, stubs, packages, books, records, forms, returns and other election paraphernalia in the polling place. Such canvassing inspectors, and the poll clerks so designated, shall then have the powers and duties of the board of inspectors and poll clerks, respectively, in the count and return of 'the vote and the performance of any power or duty devolved upon the board of inspectors or poll clerks by this article after the comparison of the poll books with the registers. The chairman of such canvassing inspectors, chosen as provided in section three hundred and fourteen, shall be the chairman of such board of inspectors. The certificate as to the number of voters who voted at the polling place, made by the retiring inspectors and poll clerks, shall be annexed to the ballot clerks' returns before the filing thereof as provided by law.

The returns of canvass shall be subscribed and verified and the tally sheets subscribed and certified by the inspectors who canvass the vote. The words "acting as poll clerk" shall be added to the subscription of each inspector so acting, instead of requiring his signature in each separate capacity; and the forms provided in sections three hundred and thirty-five, three hundred and thirtyseven and three hundred and thirty-eight, so far as they relate to the subscription thereof, shall be so altered and printed as to provide for a compliance with the foregoing provisions. In such city, three of the canvassing inspectors may swear to the returns of canvass before the chairman, and the chairman before any of such inspectors. The ballot clerk's return may be sworn to before any election officer of the election district.

Added by L. 1918, ch. 323, in effect Apr. 24, 1918.

§367. Comparing poll-books and registers; verifying number of ballots.

The board of inspectors shall commence the canvass by comparing the two poll-books, and where the poll-books are separate from the register by comparing the poll-books with the registers used on election day as to the number of voters voting at the election, correcting any mistakes therein, and, after the ballot

clerks have delivered their returns to the chairman of the board, and not before, by counting the ballots found in the ballot boxes without unfolding them, except so far as to ascertain that each ballot is single, and by comparing the number of ballots found in each box with the number shown by the poll-books and the ballot clerks' returns 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 all 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 inclose them in an envelope which he shall then and there seal and indorse "excess ballots from the box for ballots for (presidential electors, or general officers, et cetera, as the case may be)," signing his name thereto, and such envelope with the excess ballots therein shall be placed in the box for defective or spoiled ballots.

If two or more ballots shall be found in the ballot box so folded together as to present the appearance of a single ballot, and if the whole number of ballots in such ballot box exceeds the whole number of ballots shown by the poll books and ballot clerks' returns to have been deposited therein, and not otherwise, they, or enough of them to reduce the ballots to the proper number, selection to be made without examination of any voting mark thereon, shall similarly be inclosed, sealed, indorsed and placed with the spoiled ballots.

If, however, there lawfully be more than one ballot box for the reception of ballots voted at the polling place, no ballot found in the wrong ballot box shall for that reason be rejected, but shall be placed in its proper box by the inspectors upon the count of the ballots before the canvass, and counted in the same manner as if found in the proper ballot box, if such ballot shall not, together with the ballots found in the proper ballot box, make a total of more ballots than are shown by the poll books and ballot clerks' returns to have been deposited in the proper box.

No ballot that has not the official indorsement shall be counted, except such as are voted in accordance with the provisions of this chapter relating to unofficial ballots.

Derivation:

ch, 335, § 7.

Election Law, § 110, pt. of subd. 1, as amended by L. 1898,

Amended by L. 1913, ch. 821; L. 1919, ch. 504, in effect Oct. 1, 1919.

The indorsement upon the official ballot is an essential part of the machinery of elections, by means of which the secrecy of voting is to be secured and enforced. Where ballots were cast containing an incorrect indorsement they were rejected lawfully. People ex rel. Nichols v. Board of Canvassers, (1892) 129 N. Y. 401.'

(It should be noted, however, that the ballots referred to in the above case were prepared under what was known as the Ballot Reform Law, which provided that each political party should have a separate ballot for its own use, and, therefore, if the indorsement upon the back of one set of ballots was different from the indorsement upon the others, the ballot would reveal, when voted, how, or for whom, the elector cast his ballot. In the present law where there is but one ballot for all parties, is the indorsement necessarily of so great importance?)

A proper and legal indorsement is one of the essential features of un «ficial ballot, and a ballot not legally endorsed cannot be received or counted. People ex rel. Sherman v. Person, (1892) 64 Hun 327, 45 N. Y. St. Rep. 528, 19 N. Y. Supp. 297, aff'd 135 N. Y. 613.

§ 368. Method of canvassing.

1. Method of canvassing ballots generally. Except as hereinafter specially provided, the method of canvassing ballots shall be as follows:

The chairman of the board of inspectors shall personally unfold each ballot of the kind then to be canvassed in such a manner that its face shall be down and all marks thereon shall be wholly concealed, and he shall place all the ballots, so unfolded and with their faces down, in one pile. He shall then take up each ballot in order, turn it face up, and announce in a loud and distinct voice, the vote registered on the first section or that the ballot is void or that the section is blank, as the case may be. He shall then turn the ballot face down and place it in a new pile. When he has announced the votes on the first sections of all the ballots of the kind then to be canvassed, and the poll clerk's tallies made as hereinafter provided are proved to be correct, the official return provided for in article thirteen shall be filled out and signed. Then, and not before, the chairman shall proceed to canvass in like manner the votes upon the sections remaining to be canvassed, completing the canvass of each ballot as he proceeds, and thus he shall proceed until all the ballots have been canvassed.

As each vote is announced each poll clerk shall immediately tally it in black ink, with a downward stroke from right to left upon the official tally sheet provided for the purpose, also carefully tallying one for each blank or void vote. Each poll clerk as he tallies a vote shall clearly announce the name of the candidate for whom he tallies it, or that he tallies the vote blank or void as the case may be, or in case of a question submitted that he tallies the vote "Yes" or "No" as the case may be, and until such annour.cement by each poll clerk the chairman shall not announce another vote. When a candidate's name is not printed on the official tally sheet or return provided, it shall be written in full thereon in ink in its due order, that is, in the order in which it appears on the ballot. The tally marks shall be made in due numerical order in the tally spaces provided.

When all the sections relating to the same office or question shall have been canvassed, the number of ballots shall be compared with the tally thereof. If the result as shown on the tally sheets does not agree with the results as shown by the number of ballots, an error has been committed and a recanvass must be made. Upon the recanvass, the tally must be kept in red ink from left to right across the previous tally marks. When all the errors have been corrected and the tally sheets have been found to be correct, the poll clerks shall indicate the last tally opposite each name by forthwith canceling at least the next ten unused tally spaces, if there are so many, and if there are not so many, then as many as possible, by drawing through them in red ink one or more horizontal straight lines. The tally sheets having been thus prepared, verified, and closed, the inspectors and poll clerks shall sign the certificate at the foot of each sheet in the places indicated thereon.

2. Canrassing ballots when more than one candidate is to be elected to the same office. When more than one candidate is to be elected to the same office, the foregoing method of canvass shall be modified to meet the necessities of the case, as follows:

The chairman shall read the names of the candidates voted for in the order in which they appear in the section, and each poll clerk shall make an accurate tally of each vote as announced upon the official tally sheet provided for the purpose. The chairman shall also announce the void ballots, if any, and

the number of blanks, if any, upon the section, and each poll clerk shall make as many tallies for each void ballot as there are candidates thereon to be elected to the office in question, and one tally for each blank.

3. Canvassing presidential ballots. The straight ballots, that is, all valid ballots on which all the candidates in any party group are voted for, shall be placed in piles, like with like, and the split ballots, that is, all valid ballots marked in one or more of the individual voting squares or with names written thereon, shall be placed in one pile, and all void ballots and wholly blank ballots shall be likewise placed in separate piles. Each of the piles shall then be counted and the result clearly announced, and the number of straight votes for each candidate shall be entered in gross opposite his name on a tally sheet by each poll clerk, and the number of split, void and wholly blank ballots shall be similarly entered in their appropriate places. The chairman shall then take the split ballots and they shall be canvassed, announced and tallied in the manner above provided for canvassing ballots when more than one candidate is to be elected to the same office.

Derivation: Election Law, § 110, subd. 2, as amended by L. 1898, ch. 335, §7; L. 1901, ch. 654, § 5.

Amended by L. 1911, chs. 296 and 649; L. 1913, ch. 821, and L. 1914, ch. 244, in effect Apr. 8, 1914.

Cross-References. - See Election Law, §§ 358 and 369, and cases cited in notes thereunder.

The purpose of the Election Law was to secure secrecy to the voter, and to that end it is imperative that he should strictly pursue the method prescribed by the act for his designation of the person for whom he intends to vote. People ex rel. Wells v. Collin, (1897) 19 App. Div. 457, 46 N. Y. Supp. 701, aff'd 154 N. Y. 750.

The very purpose of voting is that the ballot may show the voter's choice, and when he names more than the limited number of candidates to be voted for, it is impossible to determine which of the number he prefers. People v. Ames, (1860) 19 How. Pr. 551; People v. Loomis, (1832) 8 Wend. 396; People v. Seaman, (1848) 5'Den. 409.

Irregularity and ambiguity in ballot. — If it is possible to determine the intention of the elector his ballot is to be counted as he intended. In re "Jerome Ballots," 48 Misc. 441, 96 N. Y. Supp. 122.

These rales have no reference to false or imperfect markings, but have reference only to ballots upon which the markings comply with the statutory requirements, but as to which there is confusion as to the particular candidates for which the voters intended to vote. Matter of Houligan, (1907) 55 Misc. 7, 106 N. Y. Supp. 205.

Ballots whose marks for voting do not substantially comply with the Election Law are void and must be rejected by the inspectors, and no question of the voters intention is involved. Matter of Houligan, (1907) 55 Misc. 5,

106 N. Y. Supp. 205.

Void ballots- ballots not conforming to the provisions of a statute intended for the purpose of securing secrecy, and which reveal the contents or render them capable of subsequent identification, are void by force of prohibition in the statute against revealing and counting them. Commonwealth v. Woelper, 3 S. & R. 29; West v. Ross, 55 Mo. 350; Oglesby v. Sigman, 56 Misc. 502; State v. McKinnon, 8 Oreg. 493; Reynolds v. Snow, 67 Cal. 497; Talcott v. Philbrick, 59 Conn. 472; Fields v. Osborne, 21 Atl. Rep. 1070; In re Vote Marks, id. 962; Ledbetter v. Hall, 62 Mo. 422; Perkins v. Carraway. 59 Miss. 222; Steele v. Calhoun, 61 Miss. 556.

Irregularity and ambiguity of ballot.-Review by court of marks on ballot as showing intent to evade or violate the law. Matter of Hearst, (1905) 48 Misc. 453, 96 N. Y. Supp 119, mod'f'd 110 App. Div. 346, 96 N. Y. Supp 341, which was reversed 183 N. Y. 274.

A ballot marked in the circle at the head of one ticket and also in the circle at the head of the ticket bearing Mr. Jerome's name alone as district attorney nominee, held not a blank ballot as to district attorney, but should be counted for Mr. Jerome. Such marks held not intended as distinguishing marks. In re Jerome Ballots," (1905) 48 Misc. 441, 96 N. Y. Supp. 122.