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ARTICLE 12.

BOARDS OF CANVASSERS.

Bection 430. Organization of county board of canvassers.

431. Production of returns and tally sheets.

432. Correction of clerical errors in election district statements. 433. Mandamus to county or state boards of canvassers to correct errors. 434. Proceedings of state board of canvassers upon corrected state

ments of county boards.

435. Mandamus to state board to canvass corrected statements of county boards.

436. Proceedings upon corrected statements.

437. Statements of canvass by county boards; preservation of protested, void and wholly blank ballots.

438. Decisions of county boards as to persons elected.

439. Transmission of statements of county boards to secretary of state and board of elections.

440. Organization and duties of board of canvassers of the city of New York.

440a. City boards of canvassers.

441. Organization of state board of canvassers.

442. Canvass by state board.

443. Certificates of election.

444. Record in office of secretary of state of county officers elected.

430. Organization of county board of canvassers.

The board of supervisors of each county shall be the county board of canvassers of such county. The county board of canvassers of each county within the city of New York shall consist of the members of the board of aldermen of the city of New York elected as such within the county. The said county boards of canvassers shall also within their respective counties be the city board of canvassers of such city, The county board of canvassers of a county containing a city or cities shall be the city board of canvassers of such city or cities, except that the board of aldermen of the city of Buffalo shall be the city board of canvassers for such city. The county board of canvassers of the respective counties shall meet on the Tuesday next after each election of public officers held in such county other than an election of town, city, village or district school officers held at a different time from a general election. The board of county canvassers shall meet at the usual place of meeting of the board of supervisors, except that in a county wholly included in the city of New York such board of county canvassers shall meet at the office of the county clerk. Upon such meeting they shall choose one of their number chairman of such board. In a county having a single commissioner of elections, instead of a board of elections, such commissioner shall be the secretary of the board of county canvassers. In a county wholly included within the limits of the city of New York and in a county, if any, in which the general powers and duties of a county board of elections is devolved upon the county clerk by this chapter, the county clerk, or if he be absent or unable to act, a deputy county clerk designated by the clerk, shall be secretary of the board of county canvassers. In every other county of the state the president of the board of elections shall be the secretary of the board of county canvassers, or if he be absent or unable to act, the secretary of such board shall be the secretary of the board of county canvassers. When a chairman of the board of county canvassers shall have been chosen, as above provided, the secretary of such board shall thereupon administer the constitutional oath of office to the chairman, who shall then administer such oath to each member, and to the secretary of the board. A majority of the members of any board of canvassers shall constitute a quorum thereof. If. on the day fixed for such meeting, a majority of any such board shall not at

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tend, the members of the board then present shall elect the chairman of the board and adjourn to some convenient hour of the next day. If such board. or a majority thereof, shall fail or neglect to meet within two days after the time fixed for organizing such board, the supreme court, or any justice thereof, or county judge within such county, may compel the members thereof by writ of mandamus to meet and organize forthwith.

Derivation:

Election Law, § 130, as amended by L. 1897, ch. 379, § 21; L. 1901, ch. 208. § 1; L. 1905, ch. 643, § 22; L. 1908, ch. 105, § 1.

Amended by L. 1910, ch. 432; L. 1916, ch. 537, in effect May 15, 1916. Consolidators' note. — In the Election Law of 1896, this section constituted the board of supervisors of each county the county board of canvassers for the county, exception, however, being made of the counties of New York and Kings, where the boards of aldermen of the cities of New York and Brooklyn were made the county canvassers, these counties having under the Constitution (art. 3, § 26) no supervisors whatever, as their boundaries coincided with those of the cities. When in 1897 both cities were merged in the "greater New York," the coincidence of city and county lines ceased, and the two counties thereby lost their constitutional immunity from supervisors, and at the same time by L. 1897, ch. 380, the constitutional requirement was complied with by providing that members of the municipal assembly should be elected "as such and also as supervisors" from the several counties within the city; but their powers as supervisors" were restricted to (1) acting as county canvassers; and (2) subdividing their counties into assembly districts (a constitutonal function). At the same time L. 1897, ch. 379, amended this section by eliminating the exceptional provisions for New York and Kings counties, and made the supervisors the county canvassers in every county.

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In 1899, article 3, section 26 of the Constitution was amended so as to abolish the office of supervisor in counties within, and less than, a city, and to permit the functions of the office to be devolved upon the local municipal legislature; and later, L. 1901, ch. 466, amended section 1586 of the New York city charter by vesting the powers and duties of the several boards of supervisors of the counties within the city in "the board of aldermen," which board, by virtue of legislation concurrent with the foregoing, succeeded to the former "municipal assembly." It should be noted that from 1897 until 1900, when the constitutional amendment went into effect, the aldermen and members of the common council of the city of New York were actually also elected as supervisors, the ballots reading "for Alderman (or Councilman) and Supervisor," but that since 1900 they have been elected only as aldermen (or councilmen ).

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This situation has given rise to two claims: (1) that the duties of the county canvassers were devolved upon "the board of aldermen," i. e. the whole board; and (2) that they were devolved upon only those members of the board who were elected within the county, in spite of the language of the statute that they are vested in the board of aldermen." In another aspect the question is whether L. 1897, ch. 380, was in effect repealed or not by the constitutional amendment of 1899, with or without the subsequent act of 1901. For the complete argument on both sides of the question reference is made to the briefs of counsel in Matter of Scofield v. Board of Aldermen, reported in 102 App. Div. 358, also to the conflicting opinions of successive corporation counsels and to the communications addressed to the corporation counsel, forming a part of the record of that case. The Supreme Court at special term, in an unconvincing opinion by Marean, J., held that the county canvassers were only the aldermen elected from the county. The appellate division of the second department did not pass on the question, disposing of the case on the ground that the party initiating the proceedings had not the right to maintain them. The question may therefore fairly be said to be an open one. At all events the case exhibits a serious omission by the Legislature. That omission is here supplied by changing the sentence reading "The county board of canvassers of counties wholly or partly within the city of New York shall be the city board of canvassers of the city of New York within their respective counties," to "The county board of canvassers of each county within the city of New York shall consist of the members of the board of aldermen of the city of New York elected as such within the county. The

said county boards of canvassers shall also within their respective counties be the city board of canvassers of such city."

The effect of this change is, briefly, to give express warrant for what is now the actual practice and to supply the legislative sanction, presumably omitted by mistake, for a continuance of the former method of canvass, in line with Mr. Justice Marean's opinion; also to settle the dispute in the Scofield case, but not passed upon by the appellate division, whether the presidents of the boroughs are members of the canvassing boards, since they are, for some purposes at least, members of the board of aldermen.

Secretary of Board. — In case the county clerk refuses to perform his duty as secretary, the remedy is not confined to the procuring of a writ of mandamus to compel performance, but the board has power to designate one of its number as secretary pro tem. People ex rel. Daley v. Rice, (1892) 129 N. Y. 449, 14 L. R. A. 643.

The duty of a county clerk as secretary to the Board of County Canvassers, is purely ministerial, and he cannot assume to sit in judgment upon the action of that body. People ex rel. Daley v. Rice, (1892) 129 N. Y. 449, 14 L. R. A. 643.

Adjournment. Where a board of canvassers of a town are required to meet for the performance of their duty on a particular date and there is no limit of time mentioned within which the duty must be performed, it would be competent to adjourn such a meeting and even if the meeting was adjourned sine die, to assemble again and perform the undischarged duty. People ex rel. Smith v. Schiellein, (1884) 95 N. Y. 124.

§ 431. Production of returns and tally sheets.

As soon as such board of county canvassers shall have been organized, the officer with whom they were filed shall deliver to such board of canvassers all the returns with tally sheets annexed containing the original statements of canvass received from inspectors of election for districts within the county for which said board are county or city canvassers. The original statements which have been delivered to members of the board of canvassers shall then be delivered to the board. If any member of the county board of canvassers shall be unable to attend the first meeting of such board, he shall, at or before such meeting, cause to be delivered to the secretary of such board any original statement that may have come into his possession. If, at the first meeting of a county board of canvassers of any county, all returns with tally sheets annexed so required to be produced shall not be produced before the board, it shall adjourn to some convenient hour of the same or the next day, and the secretary of such board shall, by special messenger or otherwise, obtain such missing returns, if possible, otherwise he shall procure the other set of returns with tally sheets annexed, or, failing that, the third set of returns without tally sheets, in time to be produced before such board at its next meeting. At such first meeting, or as soon as an original statement of the result of the canvass of the votes cast at such election in every election district of the county shall be produced before such board, the board shall proceed to canvass the votes cast in such county at such election.

Derivation: Election Law, § 131, as amended by L. 1897, ch. 379, § 22.
Amended by L. 1913, ch. 821; L. 1916, ch. 537, in effect May 15, 1916.
Cross-references.- Destruction of election returns. Penal Law, § 1429 (part

5, post).

The powers and duties of a county board of canvassers are purely ministerial. They cannot act judicially. People ex rel. Blodgett v. Board,

(1892) 44 N. Y. St. Rep. 738, 19 N. Y. Supp. 206; People ex rel. Derby v. Rice, (1891) 129 N. Y. 461. Felt's Case, (1871) 11 Abb. Pr. (N. S.) 203. The county board cannot estimate the number of votes cast from the sample ballots attached to the inspectors' certificates instead of from the face of the return. People ex rel. Noyes v. Board, (1890) 34 N. Y. St. Rep. 8; Matter of Noyes, (1890) 34 N. Y. St. Rep. 127; People ex rel. Noyes v. Board, (1892) 126 N. Y. 392. It should be noted that the present law does not require sample ballots to be attached to the returns made by the inspectors.

It is clearly the intention of the statute that the official statement made after and in accordance with the proclamation of the result of the canvass, which is required to be certified to as correct over the signatures of the inspectors, shall form the basis of the estimate of the board of canvassers. Matter of Noyes, 34 N. Y. St. Rep. 127. But see Matter of Stewart, post.

Tally sheet as original record. The tally sheet being the original entry of the casting and canvassing of a vote under the Election Law is intended by the legislature to furnish a contemporaneous official record of the actual count which shall control in case of any discrepancy between it and the clerical statement made from it by the inspectors after the completion of the canvass and for the purpose of convenience. Matter of Stewart, (1898) 155 N. Y. 545, aff'g 24 App. Div. 201, 48 N. Y. Supp. 957.

The original statement prescribed by section 111 (now § 373) of the Election Law is called an original for the reason that it is necessary to attach to it the void ballots and those protested as marked for identification, but it is not an original document in any other sense and is a purely ministerial act of the inspectors that cannot control the tally sheet of which it is an abstract. Matter of Stewart, (1898) 155 N. Y. 545, aff'g 24 App. Div. 201, 48 N. Y. Supp. 957.

The provision for the canvass of votes from the inspectors' statements made by section 131 (now § 431) of the Election Law, while it contemplates that the board of county canvassers shall act upon such statements without recourse to the tally sheets, when the statements are unchallenged as to their accuracy, does not make those statements the best evidence of the final result of the election in case they are attacked for mistake or fraud. Matter of Stewart, (1898) 155 N. Y. 544, aff'g 24 App. Div. 201, 48 N. Y. Supp. 957. The court cannot compel the county board of canvassers to change the returns of a general election so as to show separately the number of votes cast for the office of governor in the name of and under the emblem of the political party whose candidate for the office was the same as that of another political party, in order that it shall appear from the returns filed in the office of the secretary of state whether or not such first mentioned political party polled ten thousand votes for state officers at such election, and is thus entitled to make its nominations for the next year by convention. People ex rel. Boies v. Board of Canvassers, (1903) 79 App. Div. 514, 80 N. Y. Supp. 25.

§ 432. Correction of clerical errors in election district statements. If, upon proceeding to canvass such votes, it shall clearly appear to any county board of canvassers that certain matters are omitted from any such statement which should have been inserted, or that any merely clerical mistakes exist therein, they shall have power, and such power is hereby given, to summon the election officers whose names are subscribed thereto before such board, and such election officers shall forthwith meet and make such correction as the facts. of the case require; but such election officers shall not change or alter any decision before made by them, but shall only cause their canvass to be correctly stated. The board of county canvassers may adjourn from day to day not exceeding three days in all, for the purpose of obtaining and receiving such corrected statements.

Derivation: Election Law, § 132.

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

The board of county canvassers has only ministerial and mot judicial duties to perform and canhot enter upon a judicial investigation to ascertain the genuineness of a return which the law required to be returned to it. Such return is favored by the presumption of official honesty and regularity. If the returns are not regular, the board should send them back to the inspectors for correction. People ex rel. Russell v. Board, (1887) 46 Hun 390; People ex rel. Noyes v. Board, (1890) 34 N. Y. St. Rep. 8; Matter of Noyes, (1890) 34 N. Y. St. Rep. 127; People ex rel. Noyes v. Board, (1891) 126 N. Y. 392; People v. Cook, (1853) 8 N. Y. 67; People ex rel. Deuchler v. Board, (1882) 64 How. 337; Matter of Felt, (1871) 11 Abb. (N. S.) 207; People v. Van Slyck, 1825) 4 Cow. 297; Ex parte Heath, (1842) 3 Hill 42; Kortz v. Canvassers, (1882) 12 Abb. N. C. 84.

The board of state canvassers act ministerially in the main in making their certificate. Their judicial power extends no further than to take notice of matters of public notoriety. The Supreme Court alone has the power to go behind the returns of the canvassers and the ballot box and determine the intention of the voters by evidence aliunde the return. People v. Cook, (1853) 8 N. Y. 67, aff'g 14 Barb. 259.

A writ of mandamus will issue to compel the canvassing board to send back to the inspectors, for correction, returns which do not show upon their face that any particular person received any votes whatsoever, and which do not contain a statement of the number of general ballots protested as "marked for identification." People ex rel. Ranton v. City of Syracuse, (1895) 88 Hun 203, 34 N. Y. Supp. 661.

A mandamus will lie to compel the county board to send back to the inspectors for correction returns upon which the names of candidates are incorrectly given or misspelled. People ex rel. Munro v. Board, (1892) 129 N. Y. 469.

Summoning inspectors to correct return. When the statement or return of election district inspectors states a less number of votes for certain candidates than that shown by the unquestioned tally sheet, the board of county canvassers may be required by mandamus, on the petition of the candidates prejudiced by the return, to exercise the power conferred by section 132 (now 432) of the Election Law to summon the inspectors to correct their return, and also, independently of the Election Law, the inspectors may be required, by mandamus, to convene and make a correct return, and the county board of canvassers directed to canvass the corrected return. Matter of Stewart, (1898) 155 N. Y. 545, aff'g 24 App. Div. 201, 48 N. Y. Supp. 957.

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Correction of clerical errors only. Where it does not clearly appear that a clerical error exists in the returns of a canvass, an application to the court to have it corrected will be refused. In re Election of Alderman of First Ward, City of Buffalo, (1897) 49 N. Y. Supp. 241.

Inspectors of election cannot correct any other than clerical errors in the return of a canvass. In re Election of Alderman of First Ward, City of Buffalo, (1897) 49 N. Y. Supp. 241.

Inspectors of election have no power to alter their first determination and statement after the same has been filed. People ex rel. Russell v. Board, (1887) 46 Hun 390, 20 Abb. N. C. 19. Returns may be sent back to the clerical error, but not for a recount.

126 N. Y. 392.

inspectors for correction in case of a People ex rel. Noyes v. Board, (1892)

Boards of canvassers have no power conferred upon them to correct frauds or rectify mistakes, except clerical ones. Their duty is simply to add together the statements of results filed with them by inspectors. People ex rel. Blodgett v. Board, (1892) 44 N. Y. St. Rep. 738, 19 N. Y. Supp. 206.

Where the inspectors of election have made a canvass of votes, they cannot be compelled or permitted thereafter to make a new one. People es rel. Fiske . Devermann, (1894) 83 Hun 181, 31 N. Y. Supp. 593.

The right of the county canvassers to summon the district inspectors for the correction of errors refers only to errors that may appear on the face of the returns or tally sheet, or both; and undoubtedly the board of county canvassers can be compelled by mandamus to summon district inspectors

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