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deliberately announced in a distinct voice by the chairman of the board of inspectors who shall read the name of each candidate, with the designating number and letter of his counter, and the vote registered on such counter; also the vote cast for and against each question submitted. During such proclamation ample opportunity shall be given to any person lawfully present to compare the results so announced with the counter dials of the machine and any necessary corrections shall then and there be made by the election board, after which the doors of the voting machine shall be closed and locked.

Before adjourning the board shall, with the seal provided therefor, so seal the operating lever of the machine that the voting and counting mechanism will be prevented from operation.

Derivation: Election Law, § 178, as added by L. 1899, ch. 466, § i, and amended by L. 1907, ch. 654, § 2, and L. 1908, ch. 491, § 6.

Amended by L. 1909, ch. 240; L. 1911, ch. 649, and L. 1913, ch. 821; L. 1918, ch. 323, in effect Apr. 24, 1918.

Constitutionality in use of defective voting machines. When the elector in the use of the voting machine complies with the prescribed regulations for its use so as to indicate his choice for any particular office, the vote, so far as he is concerned, is complete. The registry by the machine is simply a substitute for the canvass of written votes. That it failed to work properly cannot destroy the effect of the act of the elector in the exercise of his constitutional right. People ex rel. Deister v. Wintermute, (1909) 194 N. Y. 99, rev'g 127 App. Div. 933.

While the use of voting machines may make it more difficult to ascertain the true vote when the machine works defectively than in cases where paper ballots are used and the ballots are preserved, the use of such machine does not necessarily impair the constitutional rights of the elector. People er rel. Deister v. Wintermute, (1909) 194 N. Y. 99, rev'g 127 App. Div. 933.

Where it is not claimed that a voting machine recorded votes in excess of those cast, but that it failed to record votes which were cast, the record as returned by the machine should be taken as the starting point of the inquiry, and such record can be verified only by competent legal proof that voters did vote for their candidate to a number in excess of those registered by the machine. People ex rel. Deister v. Wintermute, (1909) 194 N. Y. 99, rev'g 127 App. Div. 933.

Objections if substantial, that the use of a voting machine violates the requirement of the Constitution, should be determined in a direct proceeding by mandamus, or otherwise, to compel the rejection of the machine and the use of paper ballots, in which the subject can be fully investigated and the question fairly determined. People ex rel. Deister v. Wintermute, (1909) 194 N. Y. 99, rev'g 127 App. Div. 933.

Use of voting machine as violation of constitutional requirement that al elections shall be by ballot. See note,.7 L. R. A. (N. S.) 621.

Testimony of electors, when admissible to show how they voted.-Evidence that a certain number of electors exceeding in number the votes canvassed for a candidate pulled down the lever over the Democratic column containing his name does not impeach the return of the board of canvassers, for they are not called upon to determine whether the voting machine worked correctly or to correct any error if one was made. Such evidence, however, is admissible to show, that by reason of the failure of the machine to carry out and express the intent of the voters, owing to defects, there was not a fair and complete expression of the popular will at the election. People ex rel. Deister v. Wintermute, (1907) 122 App. Div. 349, 106 N. Y. Supp. 1076.

8 414. Disposition of irregular ballots; and preserving the record of the machine.

The inspectors of election shall, as soon as the count is completed and fully ascertained as in this chapter required, lock the machine

against voting, and it shall remain so for the period of thirty days and as much longer as may be necessary or advisable because of any existing or threatened contest over the result of such election, except as provided by section four hundred and sixteen of this chapter and except that it may be opened and all the data and figures therein examined upon the order of any court of competent jurisdiction or may be opened by direction of a committee of the senate or assembly to investigate and report upon contested elections of members of the legislature voted for by the use of such machine and such data and such figures examined by such committee in the presence of the officer having the custody of such machine. Any candidate shall be entitled on application to the supreme court and on reasonable grounds shown to have any machine in or upon which he was named as a candidate opened and all the data and figures therein examined by him or his authorized agents, but the court shall prescribe such conditions as of notice to other candidates or otherwise as it shall deem necessary and proper. Whenever irregular ballots have been voted, the inspectors shall return all of such ballots in a properly secured sealed package indorsed "irregular ballots," and file such package with the original statement of canvass. It shall be preserved for six months after such election, and may be opened and its contents examined only upon order of the supreme court or a justice thereof, or a county judge of such county, or by direction of such a committee of the senate and assembly if the ballots relate to the election under investigation by such committee, and at the expiration of such time, such ballots may be disposed of in the discretion of the officer or board having charge of them.

Derivation: Election Law, § 179, as added by L. 1899, ch. 466, § 1, and Amended by L. 1916, ch. 537; L. 1919, ch. 630, in effect May 14, 1919.

§ 415. Disposition of keys; opening counter compartment. The keys of the machine shall be enclosed in an envelope which

shall be supplied by the officials, on which shall be written the number of the machine and the district and ward where it has been used, which shall be securely sealed and indorsed by the election officers, and shall be so returned to the officer from whom they were received. The number on the seal and the number registered on the protective counter, if so provided, shall be written on the envelope containing the keys. All keys for voting machines shall be kept securely locked by the officials having them in charge. A public officer who, by any provision of law, is entitled to the custody of a machine for any period of time, shall be entitled to the keys therefor while such machine is in his charge. It shall be unlawful for any unauthorized person to have in his possession any key or keys of any voting machine; and all election officers, or persons entrusted with such keys for election purposes, or in the preparation of the machine therefor, shall not retain them longer than necessary to use them for such legal purpose. All machines shall be boxed and collected as soon after the close of the election as possible, and the machines, and the boxes for the machines, shall at all times be stored in a suitable place.

Derivation: Election Law, § 179-a, as added by L. 1908, ch. 491, § 8.
Amended by L. 1909, ch. 465; L. 1916, ch. 537, in effect May 15, 1916.

§ 416. Provision for re-canvass of vote.

Whenever it shall appear that there is a discrepancy in the returns of any election district, the county board of canvassers shall summon the inspectors of election thereof and said inspectors shall, in the presence of said board of canvassers, or a bi-partisan committee thereof, make a record of the number on the seal and the number on the protective counter, if one is provided, open the counter compartment of said machine, and without unlocking said machine against voting, shall re-canvass the vote cast thereon. Before making such re-canvass the county board of canvassers shall

give notice in writing to the custodian and to the county chairman of each political party or nominating body that shall have nominated candidates for the election, of the time and place where said re-canvass is to be made; and each of such political parties or nominating bodies may send two representatives to be present at such re-canvass. If, upon such re-canvass, it shall be found that the original canvass of the returns has been correctly made from the machine, and that the discrepancy still remains unaccounted for, the county board of canvassers, or said committee thereof, with the assistance of the custodian of said machine, shall, in the presence of the inspectors of election and the authorized representatives of the several said political parties or nominating bodies, unlock the voting and counting mechanism of said machine and shall proceed to thoroughly examine and test the machine to determine and reveal the true cause or causes, if any, of the discrepancy in the returns from said machine. Before testing the counters they shall be reset at zero (000) after which each counter shall be operated at least one hundred times. After the completion of said examination and test, the custodian shall then and there prepare a statement in writing giving in detail the result thereof, and said statement shall be witnessed by the persons present and shall be filed with the secretary of the county board of canvassers. But nothing contained in this section shall authorize any change in the returns filed by inspectors of election in any election district nor authorize any board of canvassers in any wise to consider or act upon any re-canvass of votes made pursuant thereto.

Derivation: Election Law, § 179-b, as added by L. 1908, ch. 491, § 8.
Amended by L. 1916, ch. 537, in effect May 15, 1916.

When mandamus will issue directing correction of returns and recanvass. A mistake by the inspectors of election in reading the vote for mayor as shown on a voting machine was discovered after the machine had been locked and the official returns sealed, but before the inspectors of election had filed

their return with the commissioners of election. The inspectors decided that they could lawfully make no change in the return, but explained their mistake to the commissioners. They also failed as required by section 413 to certify the total number of votes as shown on the public counter of the voting machine. If this had been done, it would have appeared that their return, as filed, showed more votes for the candidates for mayor than voters. No discrepancy being shown on the face of the return the county board of canvassers did not order a recanvass of the vote. This section contains provisions for a recanvass of the vote on election machines under the direction of the county board of canvassers whenever it shall appear that there is a discrepancy in the returns of any election district. In this case if the inspectors had done their duty and certified the total number of votes as shown on the public counter of the machine, a discrepancy in the returns would have appeared, and they may be required by mandamus to make a correct return. Matter of Smith v. Wenzel (1915), 216 N. Y. 421.

Faulty adjustment of voting machine.- Where one was both the Republican and the Prohibition candidate for the office of governor, and solely because of the faulty adjustment of the voting machine an elector voted twice for a candidate for governor, once in the Republican row and once in the Prohibition row, his vote should not be thrown out, but should be recorded and canvassed as one vote for governor, and the court has inherent power to direct that this be done and a peremptory writ of mandamus will issue directing the board of canvassers in making and completing their canvass of the votes cast in said election district to state, declare, certify and canvass the votes cast therein for the office of governor, as indicated in the opinion of the court herein. Matter of Rattigan v. Searing (1918), 105 Misc. 155, 172 N. Y. Supp. 804.

§ 417. Application of other articles and penal law.

The provisions of the other articles of this chapter apply as far as practicable to voting by voting machines, except as herein provided. The provisions of the penal law and of this chapter relating to misconduct at elections shall apply to elections with voting machines. Any person who shall before or during an election tamper with any voting machine; or who shall interfere or attempt to interfere with the correct operation of the voting machine, or the secrecy of voting; or shall wilfully injure a voting machine to prevent its use; or, any election or police officer or anyone em ployed to assist in the care or arrangement of the voting machine, who shall permit any person to violate the secrecy of the voting, or to interfere in any way with the correct operation of the voting machine; or any unauthorized person who shall make or have in his possession a key to a voting machine that has been adopted and will be used in elections in this state shall be guilty of a felony, punishable by imprisonment in a state prison for not less than one year nor more than five years.

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