Relates to military ballots and absentee ballots

Summary of specific provisions

Section 1 of the bill amends election law § 3-220(1) to provide that a voter's facsimile number will not be released for public inspection by the board of elections.

Section 2 of the bill amends election law § 7-123, which defines a mili- tary ballot. It would:

A) replace the existing military voter oath with the federal affirma- tion. This will eliminate the need to indicate if the military voter is a service person or the family member of a service person;

B) clarify what will be printed on the ballot envelope, including the sworn affirmation, voter identification information and instructions to the voter;

C) direct that the board of elections fill in the voter identification information on a ballot envelope that was received by a voter via mail before it is sent to the voter and fill in the voter identification information on a ballot envelope that was received by a voter electron- ically after it is received by the board;

D) clarify the instruction on the ballot envelope for returning an original signed ballot application to the appropriate board within the timeframe for receipt of the ballot itself;

E) provide that a military voter who designated a preference to receive a ballot by electronic means shall receive instruction for creating a ballot envelop that contains all of the required information;

F) clarify when a ballot must be returned to the board in order to be counted and that a signed military ballot application shall not be returned in the ballot envelope to address an issue recently raised in Matter of Stewart v. Chautauqua County Bd. of Elections (14 NY3d 139 (2010));

G) clarify the information which must be contained on the outer envelope addressed to the board and instructions for returning the sealed ballot envelope containing the marked ballot and, if necessary, the original signed ballot application within the outer envelope;

H) provide that an outer envelope that is created by a military voter must include the language that allows the voter to have a witness's name and date instead of a postmark; and

I) provide that the ballot, ballot envelope and outer envelope be mailed to the voter in a third envelope or, if a voter has designated a prefer- ence for electronic transmission of ballot materials, that the voter be sent instructions for creating an outer envelope containing all neces- sary information.

Section 3 of the bill amends election law § 7-124, which defines a special federal ballot, to incorporate all the same changes that were made in section 2 of the bill for military ballots, except that the special federal voter outer envelope will not allow a witness instead of a postmark.

Section 4 of the bill amends election law § 8-400(d) to provide that a military voter may request, in addition to a military ballot, a voter registration and an absentee ballot in a letter or-by facsimile or elec- tronic mail;

Section 5 of the bill renumbers election law § 9-209 and amends the section to provide that:

A) the board of elections shall cast and canvass any federal write-in absentee ballots validly cast-by a military voter for all questions, proposals, public offices and party positions for which such voter is entitled to vote;

B) a military voter may use a federal write-in absentee ballot from inside or outside the United States; and

C) a federal write-in absentee ballot may be returned 13 days after a general or special election and 7 days after a primary election.

Section 6 of the bill amends election law § 10-102(1) and (2) to conform the definition-of "military service" and "military voter" to federal law.

Section 7 of the bill amends election law § 10-106(3), (4) and (11) to provide that a military voter may:

A) request a voter registration application or a military ballot appli- cation by facsimile transmission or electronic mail;

B) designate a preference for transmission of registration and ballot materials;

C) obtain documents from the board of elections via the designated preferred method; and

D) have a family member request a military ballot for a military voter stationed inside, as well as outside, the United States.

Procedures for transmitting documents to and receiving documents from military voters shall, to the extent practicable, protect the security and integrity of the process and the identity and personal data of the voter; provided that this paragraph shall not limit the information that may be obtained by the public pursuant to election law § 3-220.

Section 8 of the bill would add a new section 10-107 in the election law to authorize a military voter to designate a preferred method of trans- mission of registration and ballot materials. This designation will remain in effect until changed by the voter. Without such a designation, the default method is mail. If a voter designates another method but does not send a facsimile number or an email address, the materials would be sent by mail with a request for the omitted information. All communications with the voter will include the mailing address of the board of elections. Regardless of the designation, all original completed applications and ballots must be returned to the board of elections by mail or in person.

Section 9 of the bill amends election law § 10-108(1) to provide that military ballots will be sent to the voter via the preferred trans- mission method. In addition, within 3 days of the scheduling of a special election or upon a court restraining the issuance of ballots, all military voters will be sent a federal write-in absentee ballot. Upon the certification of the ballot, all military voters will be sent such certified ballot via the preferred method of transmission, notwith- standing the prior transmission of the federal write-in absentee ballot.

Section 10 of the bill amends election law § 10-112(1) to clarify the way a military voter will prepare the ballot for return to the board of elections.

Section 11 of the bill would add a new section 10-125 in the election law to prohibit the board of elections from refusing to accept voter registration applications, ballot applications, ballots or federal write-in absentee ballots solely on the basis of notarization require- ments, paper type or envelope type.

This section also requires the boards of elections to establish a free access system by which a military voter may determine if the board of elections has received the voter's ballot.

Section 12 of the bill amends election law § 11-106(1) deletes outdated language regarding the pasting of a special federal voters signature in the poll book and provides that application forms shall be in a form prescribed by the state board of elections.

Section 13 of the bill amends election law § 11-202(1)(d) and adds 2 new paragraphs (e) and (f) to provide that a special federal voter may:

A) request a voter registration application or a special federal ballot application by facsimile transmission or electronic mail;

B) designate a preference for transmission of registration and ballot materials; and

C) obtain documents from the board of elections via the designated preferred method.

Procedures for transmitting documents to and receiving documents from special federal voters shall, to the extent practicable, protect the security and integrity of the process and the identity and personal data of the voter; provided that this paragraph shall not limit the informa- tion that may be obtained by the public pursuant to election law 3-220.

Section 14 of the bill adds a new section 11-203 to election law to authorize a special federal voter to designate a preferred method of transmission of registration and ballot materials. This designation will remain in effect until changed by the voter. Without such a designation, the default method is mail. If a voter designates another method but does not send a facsimile number or an email address, the materials would be sent by mail with a request for the omitted information. All communications with the voter will include the mailing address of the board of elections. Regardless of the designation, all original completed applications and ballots must be returned to the board of elections by mail or in person.

Section 15 of the bill amends election law § 11-204(1), (2) and (4)to delete outdated language regarding the pasting of a special federal voters signature in the poll book and provides instead that application forms shall be in a form prescribed by the state board of elections. It also provides that the board of elections will contact or send materials to a special federal voter pursuant to the voter's preferred method of transmission.

Section 16 of the bill amends election law § 11-216 to add a new subdi- vision 3 to provide that within 3 days of the scheduling of a special election or upon a court restraining the issuance of ballots, all special federal voters will be sent a federal write-in absentee ballot. Upon the certification of the ballot, all special federal voters will be sent such certified ballot via the preferred method of transmission, notwithstanding the prior transmission of the federal write-in absentee ballot.

Section 17 of the bill adds section 11-219 and 11-220 to the election law. Section 11-219 would prohibit the board of elections from refusing to accept voter registration applications, ballot applications, ballots or federal write-in absentee ballots solely on the basis of notarization requirements, paper type or envelope type.

This section also requires the boards of elections to establish a free access system by which a military voter may determine if the board of elections has received the voter's ballot.

Section 11-220 would clarify that the general provisions of the election law apply to the special federal voter except where they are inconsist- ent with the law specifically addressed to special federal voters; that the law should be liberally construed to allow special federal voters to vote and that the state board of elections may adopt regulations to effectuate the provisions addressed to special federal voters. These are the same provisions that currently exist for military voters in election law § 10-126.

Section 18 contains the effective date.

Justification

In New York, military voters are sent "military ballots" that are identical to the generic absentee ballot used in New York because military voters can vote in all federal, state and local races. However, the application and sworn statement required for a military ballot is different from that used by a generic absentee voter because the qualifications to receive a military ballot is different from the qualifications to receive an absentee ballot.

In contrast, overseas voters, American citizens that once lived in the United States but no longer do, are called special federal voters in New York and are sent "special federal ballots" that are different from generic absentee ballots. Pursuant to federal and state law, these voters may vote in federal races but not state and local races.

There is a growing concern nationwide about military and special federal voters' ability to cast an absentee ballot that will arrive timely and be counted. For several years, New York extended the effective date of a law that sought to address this issue. In 2008, New York law was amended to allow, for the first time, military and special federal voters to request a ballot by facsimile or email. It also permanently expanded the deadline for receipt of such ballots to 13 days after a general or special election and 7 days after a primary. Finally, it made permanent the provision that allows a military voter to have a witness sign and date his or her ballot transmittal envelope instead of obtaining a post- mark.

In late 2009, Congress enacted and the President signed the National Defense Authorization Act (P.L. 111-84), which included the bipartisan Military and Overseas Voter Empowerment (MOVE) Act of 2009. The federal law is intended to provide minimal standards for absentee ballot trans- mission to military and overseas voters in federal elections to ensure that they have sufficient lead time to request, complete and return their absentee ballots. All states must comply with the federal require- ments.

The federal law has 2 significant components' that affect state election law:

(1) states must allow military voters to designate a preferred method of transmission to the voter of voting materials, including a form of elec- tronic transmission; and

(2) states must send ballots to military and special federal voters 45 days before an election.

However, the federal law reflects the fact that at least 10 states, including New York, have fall primary elections that may prevent the finalization of the general election ballot 45 days before that general election and, therefore, the 45 day time frame may be impossible to meet without moving the fall primary election. The law allows states to seek a hardship waiver of the 45 day requirement because of the date of the primary, because of a delay in generating ballots because of a legal contest or because the state constitution prohibits the state from complying with the time frame requirements. The state's Chief Election Official applies for the waiver from the Department of Defense, which consults the Attorney General and, if the state's comprehensive plan is sufficient, the waiver must be granted. The waiver is only good for the election for which it was submitted.

A number of the states with fall primary elections, including New Hamp- shire, Wisconsin and Hawaii, require that absentee ballots be returned by the voter to the board-of elections no later than election day. This means that such states would have to send the ballots out 45 days before the election to meet the federal mandate. In contrast, in New York, the boards of elections could send out ballots 32 days before an election, as current law requires, because pursuant to the law that was enacted last year in New York, the deadline for receipt of such ballots is 13 days after a general or special election and 7 days after a primary. Therefore, in most circumstances, New York military and special federal ballots would have 45 days to make the "round trip" from the board of elections to the voter and back to the board of elections.

This bill would build on last year's law and form the basis for New York's comprehensive plan to support a waiver of the requirement that ballots be mailed to military and overseas voters 45 days before an election in every circumstance. It includes a number of provisions that will promote the timely receipt of military and special federal ballots. These include:

(1) a requirement that a military and a special federal voter be sent a federal write-in absentee ballot:

a) within 3 days of the scheduling of a special election; or

b) whenever a board of elections is served with a court order restrain- ing the timely issuance of ballots due to ongoing litigation;

(2) a requirement that upon the conclusion of litigation affecting the content of the ballot within 32 days of the election, the board of elections must transmit a certified ballot to any military and special

federal voter who previously was sent a federal write-in absentee ballot; and

(3) authorization for military voters to use the federal write-in absen- tee ballot for state and local races.

This bill, when coupled with the new requirement that military and special federal voters must be allowed to designate a preferred method of transmission of voting materials to the voter, including by fax and email, will greatly reduce the round trip of military and special feder- al ballots, promote the timely receipt of such ballots and increase the participation of military and overseas voters in the democratic process in New York.

PRIOR LEGISLATIVE. HISTORY: This is a new bill.

Fiscal implication

Federal funding is available to pay for the voter interactive computer tool that county board of elections will use to send materials to voters via email. Counties will assume the cost of additional mailings.

Effective date

This bill would take effect immediately.