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ARTICLE 4-A1.

CONDUCT OF OFFICIAL PRIMARY ELECTIONS; CANVASS OF

RETURNS.

Section 70. Organization and conduct of official primaries.

71. Qualifications of voters at official primaries.

72. Challenges at official primary elections.

73. Expense of official primaries.

74. Primary districts, officers and polling places.

75. Notice of official primaries.

76. Restrictions as to place of primaries.

17. Removals from, and filling vacancies in, boards of primary election officers.

77a. Duties of primary poll-clerks at spring and fall primary, outside of a city of over one million inhabitants.

78. Primary poll-books, for use at extra primaries outside of cities of over one million inhabitants.

78a. Primary poll-clerks and poll-books in cities of over one million inhabitants.

79. Ballots, booths, books, blanks and supplies.

80. Delivery of ballots and manner of voting.

81. Unofficial ballots.

82. Preparation of ballot by voters.

83. Persons within the guard-rail.

84. Watchers; challengers; electioneering.
85. Canvass of votes.

86. Intent of voters.

87. Proclamation and statement of result.

88. Preservation of records and papers.

89. Canvass of statements of results; certificates of election to party position.

90. Filling vacancies and determination of tie vote after primaries; filling certain vacancies in convention nominations.

91. Party nominations for special elections and to fill certain vacancies. 92. Unofficial primaries.

93. Penalty for violation.

94. Perjury.

§ 70. Organization and conduct of official primaries.

1. Election inspectors for each election district within or comprising a primary district shall be the election officers for such primary district.

2. All said officers shall take and subscribe the constitutional oath of office, before entering on the discharge of their duties.

3. Each primary shall be held open, for voting thereat, from seven o'clock in the forenoon until nine o'clock in the evening, except in a city of over one million inhabitants, where such primary shall be held open, for voting thereat, from three o'clock in the afternoon until nine o'clock in the evening. 4. The primary election officers shall perform the duties required of election officers at a general election, and such additional duties as are in this chapter prescribed and shall receive the same pay as for services of inspectors on the last day of registration; except that in any city of over one million inhabitants, they shall respectively receive seven dollars and fifty cents for their services at each official primary.

5. In each year an official primary election shall be held on the eighth Tuesday before the general election; in each year in which a president of the United States is to be elected, an additional official primary election shall be held on the first Tuesday in April.

6. Subject only to such differences as are herein provided or as may be necessary, an official primary shall be conducted in the same manner as the general election. A chairman of each board of primary inspectors shall be

1 New article and schedule of sections inserted by L. 1911, ch. 891. Schedule and title amended by L. 1913, ch. 820, in effect Dec. 7, 1913.

2 Under the general municipal law, § 91, as added by L. 1921, ch. 70, and amended by L. 1921, ch. 260, the governing board of a city or village may provide that between the last Sunday in March and the last Sunday in October the standard time may be advanced one hour; and all official proceedings shall be so regulated.

elected in the same manner as a chairman of a board of inspectors at a general election. The chairman shall designate an inspector to act as primary ballot clerk, with the powers and duties of ballot clerks under this chapter. In a primary district comprising one election district, the inspector so designated shall be of opposite political faith from the chairman. In any primary district, the remaining inspectors, exclusive of the chairman, shall act as primary poll clerks, with the powers and duties of such clerks under this chapter. The chairman shall receive the primary ballots, as they are cast or returned by the enrolled voters. All the inspectors, including those designated as poll clerks and ballot clerks, shall also perform the duties of primary inspectors from the time the polls are opened until the statements of the results of the canvass are completed.

Added by L. 1911, ch. 891; and amended by L. 1913, ch. 820; L. 1915, ch. 678; L. 1916, ch. 537; L. 1917, ch. 703; L. 1918, ch. 298; L. 1920, ch. 878; L. 1921, ch. 479, in effect May 2, 1921.

Cross-references.-Form of constitutional oath, Const., art. 13 (part 2, post). Who may administer oath, Public Officers L., § 10 (part 6, post); General Construction L., § 36 (part 11, post). As to election officers and their duties at general elections, see sections 302, et seq., also art. 14, generally.

Duties of chairman.-Where the chairman of a caucus refuses to perform his duty or arrogates to himself the power lodged in the meeting or caucus itself, the meeting or caucus has power to elect another chairman in his place. Matter of Broat (1894), 6 Misc. 445, 27 N. Y. Supp. 176.

It is the duty of a chairman of a caucus or primary to put motions, properly made, to a vote, and he has no right to declare a motion or resolution carried without a vote being taken, unless by unanimous consent. Matter of Broat (1894), 6 Misc. 445, 27 N. Y. Supp. 176.

When the chairman of a primary declares persons nominated as delegates or committeemen, elected, without taking a vote, and he refuses to take a vote thereon or to recognize any other nomination, his act is a nullity. Matter of Broat (1894), 6 Misc. 445, 27 N. Y. Supp. 176.

Where the temporary chairman of an assembly district convention refuses, upon demand made, to call the roll of the certified members of the convention, upon a vote for the office of temporary chairman, and puts the question to vote viva voce, his action is illegal. French v. Roosevelt (1896), 18 Misc. 307, 41 N. Y. Supp. 1080.

A primary cannot be deemed a fair expression of the choice of the voters of a town where it appears that it was held in a hall largely occupied by the adherents of one faction, that the proceedings were conducted and terminated in a period of from five to ten minutes, and that a ballot demanded was refused by the chairman of the primary, who had been elected in the interest of the faction which was in practical occupation of the hall. Matter of County Clerk of Clinton County (1897), 21 Misc. 543, 48 N. Y. Supp. 407.

Rejection of vote.-A person's vote may be rejected where he refuses, when challenged, to take the required oath or answer questions as to his qualifications. Report of Atty.-Gen. (1895), 223.

Section cited.-People v. Luft (1920), 192 App. Div. 713, 183 N. Y. Supp. 514. § 71. Qualifications of voters at official primaries."

No person shall be entitled to vote at any official primary unless he is duly enrolled and may be qualified to vote on the day of election. The primary election inspectors shall decide all questions that arise relating to the qualifications of voters.

Derivation: Added by L. 1911, ch. 891, § 32, in effect Nov. 15, 1911. Cross-references. As to qualifications of voters, see also Election Law, 162. As to review by courts with regard to rights of persons to participate in primary elections, etc., see Election Law, §§ 23 and 56.

The words "qualified to vote, etc.," in this section, have relation to the qualifications specified in section 162 of the Election Law, that is, the age, citizenship and residence of the voter, and not his abilty to vote for all candidates that may be nominated at the convention regardless of the

'Changed to Monday before fifth Tuesday for year 1914. (Laws of 1914, ch. 524, in effect June 2, 1914; see opposite page 1.)

voter's residence or the district for which the officer is to be chosen. Matter of Sheridan (1907), 57 Misc. 42, 107 N. Y. Supp. 244.

Mandamus to determine qualifications. See Matter of Guess (1896), 16 Misc. 306, 74 N. Y. St. Rep. 387, 38 N. Y. Supp. 91.

When an applicant has been refused enrollment as a qualified voter at a party's primaries, an alternative writ of mandamus will issue to try his qualifications as a party voter. Matter of Guess (1896), 16 Misc. 306, 74 N. Y. St. Rep. 387, 38 N. Y. Supp. 91.

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It may well be doubted whether the condition of a voter's qualification to vote at a party primary, that he shall have voted the ticket of such party at the last election, is reasonable or lawful. Matter of Guess (1896), 16 Misc. 306, 74 N. Y. St. Rep. 387, 38 N. Y. Supp. 91.

It is the legal right of a party voter to vote at the primaries of his party, and the question whether an applicant is entitled to be enrolled and to vote at the primaries, does not depend upon the discretion, nor upon the decision of the enrolling committee, but upon the fact of whether he possesses the requirements. Matter of Guess (1896), 16 Misc. 306, 74 N. Y. St. Rep. 387, 38 N. Y. Supp. 91.

The qualification and limitation “duly enrolled" applies only to the election district in which the voter is enrolled and upon the enrollment book of which his name appears. Matter of Steinbrink v. Lloyd (1915), 169 App. Div. 354, 154 N. Y. Supp. 870.

§ 72. Challenges at official primary elections.

The right of an enrolled voter to participate in any official primary election shall be subject to challenge at any time before his ballot is deposited in the ballot box. When any enrolled voter shall be challenged, the chairman, or one of the members, of said board, shall forthwith put to him an oath or affirmation to answer truly such questions as shall be put to him, and he shall be allowed to vote if, and only if, he shall make such oath or affirmation, and shall answer in the affirmative each of the following questions: "Are you the name which he has given as his name)?

(using

Do you reside, and have you, for thirty days last past, resided at (giving the address which he has given as his resi

dence)?'

Derivation: Formerly § 57. Renumbered by L. 1911, ch. 891, § 33, in effect Nov. 15, 1911. Originally revised from Primary Election Law, § 7, subd. 2.

Purpose of oath.-A voter who has enrolled in an election district and subsequently moved his residence into another district, in which he is not enrolled, is not entitled to vote at the primary election in the district to which he has removed, even though his name has not been stricken from the enrollment list, and he cannot compel the board of inspectors to receive his ballot by taking the oath provided for in this section. The oath provided is a means of identifying only a voter who is enrolled in the election district in which he seeks to vote. Matter of Steinbrink v. Lloyd (1915), 169 App. Div. 354, 154 N. Y. Supp. 870. Report of Attorney-General, Sept. 23, 1915.

§ 73. Expense of official primaries.

The expense of official primary elections, including the expense of new books for copying enrollments in the case of changed election districts, and the compensation herein provided to be paid to primary election officers, shall be paid by the same officers or boards and in the same manner, as the expenses of general elections. If provision shall not have been made for the payment of

such expense in any year, then the officers who are empowered by law to make such provision in any county, city, town or other political subdivision of the state, are hereby authorized and directed to raise money to such an amount as may be necessary, in any manner provided by law for meeting expenses in anticipation of the collection of taxes and to pay such expense therefrom. The amount so raised shall be included in the amount to be raised by tax in the ensuing year.

Derivation: Formerly § 47. Renumbered and amended by L. 1911, ch. 891; amended by L. 1919, ch. 504, in effect Oct. 1, 1919. Originally revised fron Primary Election Law, § 4, pt. of subd. 2, as amended by L. 1900, ch. 506, § 1; L. 1901, ch. 360, § 1.

§ 74. Primary districts, officers and polling places.

The custodian of primary records shall thirty days before each official primary day, divide every ward in a city, except a city of the first class, and divide every village having five thousand inhabitants or more, into primary districts, each of which shall consist of two contiguous election districts, except that in case there is an odd number of election districts in such ward or village, one such election district, to be selected by the custodian of primary records, shall be a primary district by itself. In each of such primary districts, except where an election district shall be a primary district by itself, there shall be two polling places. Such polling places shall be designated and provided at public expense by the officers or boards whose duty it is to provide polling places for days of general election, and shall be, so far as they are available, the same places as were used for the last preceding general election. The custodian of primary records shall assign one of the polling places in each such primary district to the party which, at the last election of governor, cast the highest number of votes for governor, and at the other polling place in such primary district there shall be held the primary elections of all other parties. In all other villages and towns, and in each city of the first class, each election district shall constitute a primary district. In a city, town or village in which each or any election district constitutes a primary district there shall be for each such primary district primary election officers, who shall consist of the election inspectors for the election district comprising such pri

mary district and such inspectors shall be the board of primary inspectors. In a city or village having more than five thousand inhabitants, except a city of the first class, there shall be for each primary district having two polling places two groups of primary election officers, one of which shall consist of the election inspectors for the election districts comprised within such primary district who shall at the time represent the party which at the last preceding election of a governor shall have cast the largest number of votes for governor, and the other of which shall consist of the election inspectors who shall represent the party which, at such election shall have cast the second largest number of votes for governor. The first mentioned officers shall conduct. the primary election of the party represented by them and the second mentioned officers shall conduct the primary elections of all other parties at the time entitled to hold primary elections. The election inspectors belonging to each such group of primary officers shall be the board of primary inspectors.

In a city, town or village in which each or any election district constitutes a primary district the polling place in each such primary district shall be designated and provided at public expense by the officers or boards whose duty it is to provide the polling places for the general election, and, where practicable, it shall also be the same place that was used at the last preceding general election, unless the primary polls be placed in a school or other public building as provided in section two hundred and ninety-nine.

Derivation: Formerly § 48. Renumbered and amended by L. 1911, ch. 891; amended by L. 1913, ch. 820; L. 1915, ch. 678; L. 1916, ch. 537; L. 1917, ch. 703; L. 1918, ch. 323; L. 1919, ch. 60, in effect March 19, 1919. Originally revised from Primary Election Law, § 4, subd. 3.

§ 75. Notice of official primaries.

At least thirty-five days before each official primary day, the chairman of the general committee of each party subject to the provisions of this article, shall certify and deliver to the custodian of primary records a statement of the conventions, the time when and place where such conventions are to be held, and of the committees and offices for which delegates, alternates, members or can

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