Derivation: Election Law, § 180, as added by L. 1899, ch. 466, § 1, and amended by L. 1908, ch. 491, § 9.

Examination of voting machines.- The provisions of this section are not broad enough to warrant the granting of an order for the examination of voting machines analogous to an order for the examination of ballot boxes under § 374. Matter of Thomas (1915), 216 N. Y. 426; see 92 Misc. 483, 156 N. Y. Supp. 43.

§ 418. When poll clerks, ballot clerks, general clerks and canvassing inspectors not to be elected.

In any election district of any city, town or village for which a voting machine shall have been adopted, and which will be supplied and ready for use at the next election to be held therein, no poll clerks, ballot clerks or general clerks, and no additional inspectors known as canvassing inspectors, shall be appointed, or elected.

Derivation: Election Law, § 181, as added by L. 1899, ch. 466, § 1. Amended by L. 1919, ch. 504; L. 1920, ch. 882; L. 1921, ch. 390, in effect April 30, 1921.

§ 419. Number of voters in election districts.

For any election in any city, town or village in which voting machines are to be used, the election districts in which such machines are to be used may be created by the officers charged with the duty of creating election districts, so as to contain as near as may be in districts in which one such machine is used, six hundred voters each, and in districts in which two or more such machines are used, nine hundred voters each. Such redistricting or redivision may be made at any time after any November election and on or before August fifteenth following, to take effect on the sixth Wednesday before the next general election. Where such redistricting or redivision shall be made in any town, the board making the same shall, on or before September first following, appoint from the inspectors of election then in office (if sufficient therefor are then in office, and, if not, from persons not in office, sufficient to make up the requisite number), to take effect on or before the first day of registration thereafter and not earlier than the sixth Wednesday preceding the next general election, four inspectors of

election for each election district thus created, who shall be equally divided between the two parties entitled to representation on said boards of inspectors. Thereafter no redivision of such election district shall be made for elections by such machines until at some general election the number of votes cast in one or more of such districts in which such machine is used shall exceed six hundred and fifty, or in which two or more such machines are used shall exceed one thousand. But the town board of a town in which such machines are used may alter the boundaries of the election districts at any time after a general election and on or before August fifteenth following, to take effect on the sixth Wednesday before the next general election, provided that, the

number of such election districts in such town shall not be increased or reduced, and the number of votes to be cast in any district whose boundaries are so altered shall not exceed six hundred and fifty in a district in which one machine is used, or one thousand in a district in which two or more machines are used.

If the creation, division or alteration of an election district is rendered necessary by the creation, division or alteration of a town, ward or city or rendered necessary or occasioned by the division of a county into assembly districts after a reapportionment by the legislature of members of assembly, such creation, division or alteration of an election district shall be made and shall take effect immediately; and inspectors of election for the new election districts, as so created, divided or altered, shall be appointed, in the manner provided by law, a reasonable time before the next official primary or meeting for registration and such appointments shall take effect immediately.

Derivation: Election Law, § 182, as added by L. 1899, ch. 466, § 1, and amended by L. 1901, ch. 530, § 7, and L. 1903, ch. 122, § 1.

Amended by L. 1911, ch. 542; L. 1914, ch. 244; L. 1916, ch. 537; L. 1918, ch. 323, in effect Apr. 24, 1918.

Consolidators' note.- The provision that after a redistricting of election districts in a town two of the inspectors of election "shall belong to and be of the same political faith and opinion on state and national issues as one of the two political parties which at the last preceding general election for. state officers shall have cast the greatest number of votes in said town, and the other two "inspectors" shall belong to and be of the same political faith and opinion on state and national issues as the other of said two political parties," is omitted as unconstitutional.

The constitutional requirement (art. 2, § 6) is that "all laws creating, regulating or affecting boards of officers charged with the duty of registering voters, or of distributing ballots at the polls to voters, or of receiving, recording or counting votes at elections, shall secure equal representation of the two political parties which at the general election next preceding that for which such boards or officers are to serve, cast the highest and the next highest number of votes." The provision in question seems to violate this constitutional requirement in that it adopts the vote in the town rather than in the state as the test. The Constitution, it should be noted, lays down no rule for determining how the highest and next highest number of votes are to be determined whether the vote upon a single office shall be taken as the basis of comparison between all parties, and if so, what office, or whether the vote for the candidate who polls the greatest vote shall be deemed the vote of the party, or whether only straight ballots shall be included in estimating the number, or whether some split ballots shall be included and some excluded, or how it is to be determined whether any given vote is cast by the "political party." It is obvious that the vote for any given candidate cannot be an exact measure of a party vote, nor can the vote on any particular office be an exact measure, though in default of any better measure it is conceivable that either might, for practical purposes, be adopted as such. But whatever the measure, and however the number of votes cast by any given "political party" is to be determined, the Constitution would seem to require, ex vi terminorum, that every vote cast by the party anywhere throughout the state be counted, in deciding whether its vote was either the highest or the next highest. Suppose in any election the vote in the whole state was in this order, parties A, B and C, but in any given town using voting machines and redistricted under the section under review the party vote stood A, C, B; the Constitution would seem to divide the inspectorships between A and B; this section says they must go to A and C.

In place of this provision, accordingly, the expression used in the earlier section (Election Law, § 13, new § 312) is resorted to, and it is here provided

that the inspectors "shall be equally divided between the two parties entitled to representation on said boards of inspectors."

It may be added that the statute as it stands is inconsistent with the provision relating to the qualification of election inspectors generally (Election Law, § 11, subd. 1, new § 302), which provides for election officers "in every election district of this state" and substantially follows the language of the constitutional provision already quoted, omitting, like it, any provision as to how the "highest and next highest number of votes" are to be determined. but making, like it, the vote in the state the test. It is also inconsistent with the general provision relating to inspectors in towns (Election Law, § 13, new § 312), which provides that appointments are to be made from the nominees of "the two political parties entitled to representation on a board of election officers," and which thus refers by inference to the general requirements of the Constitution and of section 11, subdivision 1, and adopts the same test, i. e., the vote in the state. Why the Legislature adopted a basis of selection for towns which use voting machines different from that adopted for other towns, or adopted a different basis in the same town before and after redistricting (which is what the old section does) does not appear.

The statutory provisions referred to may be read in connection with the definition of a party as found in Election Law, § 32 (Primary Election Law, § 3, subd. 4), and Election Law, § 120 (Election Law, old § 56), and with new sections 48, 49, 52, 66, 72 and 73 (Primary Election Law, § 4, subds. 3 and 4, § 5, subd. 1, §§ 10, 13 and 14, respectively), and new sections 130, 194. 196, 295, 301, 303 (Election Law, §§ 61, 11, subd. 2, par. d and e; §§ 7, 10, 12, respectively), and new section 473 (Metropolitan Elections District Law, § 4), and new section 509 (Soldiers' and Sailors' Election Law, § 10). In the definition of a party and in several of the other sections just cited, the vote for governor is adopted as the test, but, with one exception, the provisions based thereon do not relate to officers in charge of registration, the polls and the canvass (the extent of the constitutional requirement). The exception referred to is Primary Election Law, § 5, subd. 1 (new § 52), as to which it is to be said that if it is to be construed not as containing a misdescription of the election officers, but as adding something to the Election Law and as requiring the election officers to represent the two parties who cast the largest and next largest votes for governor in the last preceding gubernatorial election, it would seem to be inconsistent with the constitutional requirement that the vote at the last preceding general election shall be taken.

$ 420. Definitions.

The list of candidates used or to be used on the front of the voting machine shall be deemed official ballots under this chapter for an election district in which a voting machine is used pursuant to law. The word "ballot "as used in this article, (except when reference is made to irregular ballots) means that portion of the cardboard or paper or other material within the ballot frames containing the name of the candidate and the emblem of the party organization by which he was nominated, or a statement of a proposed constitutional amendment, or other question or proposition with the word "Yes" for voting for any question or the word "No" for voting against any question. The term "question " shall mean any constitutional amendment, proposition, or other question, submitted to the voters at any election. The term "ballot label" shall mean the printed strips of cardboard containing the names of the candidates nominated, and the questions submitted. The term "irregular ballot " shall mean a vote cast, by or on a special device, for a person whose name does not appear on the ballot labels. The term " voting machine custodian" shall mean the person who shall have charge of

preparing and arranging the voting machines for elections. The term "protective counter shall mean a separate counter built into the voting machine which cannot be reset, which records the total number of movements of the operating lever.

Derivation: Election Law, § 183, as added by L. 1899, ch. 466, § 1, and amended by L. 1908, ch. 491, § 9.

Amended by L. 1913, ch. 821, in effect Dec. 17, 1913.

The fact that voting machines used at an election held to determine a question submitted had upon them the words "Yes" and "No" instead of the words "For" and "Against" does not render invalid the votes registered by such voting machines, where there is no pretense that any elector was thereby deceived. People ex rel. Williams v. Board of Canvassers (1905), 105 App. Div. 197, 94 N. Y. Supp. 996, aff'd 183 N. Y. 538.

§ 421. Saving clause.

Nothing herein shall be deemed to prohibit the adoption or use of any voting machine at any election within any town, city or village that has adopted the same prior to the tenth day of December, nineteen hundred and thirteen, if the mechanism is or may be made adjustable to conform to the grouping of candidates under the title of the office, but the method of conducting an election. therewith shall be in the manner prescribed by this chaper.

Derivation: Election Law, pt. of § 184, as added by L. 1899, ch. 466, § 1. Amended by L. 1913, ch. 821, in effect Dec. 17, 1913.