New York’s legislature enacted, and Governor Hochul signed, a bill amending Education Law §§ 1512, 1522, 1524, 1803, 1803-a, 2004, 2018-a, 2018-b and 2613 and creating new Education Law §§ 1951(t), 2018-e and 2018-f in order to implement early voting by mail in school district and school district library elections. The changes to the Education Law are part of broader legislation permitting early voting by mail throughout New York State. The legislation goes into effect on January 1, 2024. There is a legal challenge to the constitutionality of the legislation, however, on December 26, 2023, the Albany County Supreme Court denied a preliminary injunction motion which would have blocked its implementation on January 1st. Accordingly, as of now, school districts are required to comply with the legislation, which is summarized in this Legal Alert.
For school district elections, the procedures are analogous to those already in use for absentee voters. The procedures for early mail voting will be applicable to the annual budget vote and school board elections, including those in small city school districts, as well as referenda for consolidation of school districts, for establishment of a union free school district, and for Boards of Cooperative Educational Services to acquire and sell real property and to engage in capital projects thereon.
For School Districts that Provide for Personal Registration of Voters:
Boards of education of union free, central and central high school districts in counties with a population of at least one million must provide for early mail ballots for school district elections. The New York State Board of Elections will prescribe a form for the early mail ballot application; applications must include the voter’s full name, date of birth, residence address (including street and number or rural delivery route, if any), mailing address if different from the residence address, an address to which the early mail ballot should be mailed and a statement that the applicant is a qualified voter of the school district. The early mail ballot application must contain a signed declaration of the voter that the information on the application is true to the best of the applicant’s knowledge and an acknowledgement that inclusion of any material false statement constitutes a misdemeanor.
To utilize an early mail ballot, a voter must submit a written application form to the district clerk no earlier than the thirtieth day prior to the election. For an early mail ballot that is to be mailed to the applicant, the deadline for submission is seven days before the election. For an early mail ballot submitted in person by the applicant or the applicant’s agent, the deadline for submission is the day before the election.
The district clerk is charged with examining early mail ballot applications and determining if the applicant is qualified to receive an early mail ballot. The board of registration places the names of qualified applicants on the register, with an entry indicating that an early mail ballot was applied for by and issued to the applicant. No later than six days before the election, the district clerk must mail the early mail ballots requested before the mailing deadline. For in-person applications submitted by the applicant or applicant’s agent, the early mail ballots are provided to the applicant or applicant’s agent when they appear to submit the application.
The board of registration is responsible to compile a list of all voters issued early mail ballots. The list must be filed with the district clerk and be available for inspection and written challenge by qualified voters to the qualifications of anyone on the list. A challenge to an early mail voter may not be made on the basis that the voter should have applied for an absentee ballot. As with absentee ballots, early mail ballots must be, to the extent practicable, in the same form as ballots to be voted at the election.
If the election is by voting machine, early mail ballots must conform as closely as possible to the manner in which candidate names, questions and propositions appear on the voting machines, except that they must contain a space for write-in or write-ins. Early mail ballots must also include instructions for proper marking, in accordance with N.Y. Educ. Law §§ 2032 and 2034. The back of early mail ballots must be printed with the words “Official Ballot, Early Mail Voter.”
The envelope in which the early mail ballot is enclosed must be labeled “ELECTION MATERIAL PLEASE EXPEDITE.” One side of the envelope must be printed: “OFFICIAL BALLOT, EARLY MAIL VOTER for School District Election.” That side much also include the following:
Name of Voter
Residence (street and number if any)
City (or Town) of
School Election District (if applicable)
The date of the election and name of the school district must be printed, and the name of the voter, residence, school district and school election district (if applicable) must be written in by the board of registration.
The reverse side of the envelope must contain a specified statement of early mail voter, including, inter alia, that the individual is a qualified voter of the district and an acknowledgement that any material false statement constitutes a misdemeanor, and space for the voter’s signature.
The envelope must be gummed, ready for sealing, and have printed, opposite the statement of the voter, instructions on the voter’s duties after marking the ballot, including a specific direction stating that the envelope must reach the office of the district clerk by 5:00 p.m. on the day of the election for the vote to be canvassed.
To be canvassed, early mail ballots must be received in the office of the district clerk by 5:00 p.m. on the day of the election. On the day of the election, the district clerk must transmit all timely received early mail voters’ envelopes to the election inspectors. After polls close, the inspectors must examine them and compare any signature on the envelope with any signature on the register of the person of the same name from the same address. Where the signatures correspond, the inspectors must so certify by signing their initials opposite the voter’s name in the register.
If a person whose name is on an envelope already voted in person or if their name, residence and signature, as set forth on the envelope, are not on the register or if there is no signature on the envelope, the envelope is to be returned unopened to the district clerk. If such person is determined to be registered and did not vote in person, and if no objection is made or any objection is not sustained, the envelope must be opened and the ballot removed, without unfolding, and deposed in the proper box, and the inspectors must enter the words “early mail vote” at the appropriate place in the register.
During the examination of early mail ballots, any qualified voter present may object to the voting of an early mail ballot on the grounds that the person named is not a qualified voter of the school district (or school election district if applicable); any election inspector who knows or suspects that the person named is not a qualified voter is responsible to make an objection. The inspectors must then determine each objection, including any written challenge transmitted to them by the district clerk. Unless the inspectors, by majority vote, sustain the objection, the chairman shall endorse on the envelope the objection and the words “not sustained,” shall sign the endorsement, open the envelope and deposit the ballot in the proper box. If the inspectors sustain the objection by majority vote, the objection and word “sustained” shall similarly be endorsed on the envelope; the envelope will not be opened nor the ballot canvassed, and the envelope is to be returned unopened to the district clerk. If the inspectors receive an envelope endorsed with the name of a person known to be deceased on the day of the election, the inspectors are to return the envelope unopened with the words “deceased – objection sustained” endorsed on the envelope. If the election inspectors receive an envelope with no ballot inside, they shall make a memorandum indicating that the ballot is missing.
When the casting of early mail voters’ ballots is completed, the inspector shall determine the number of early ballots deposited in the ballot box by subtracting the number of missing ballots from the number of envelopes opened, and shall make a separate return in duplicate. The number of early mail voters’ ballots deposited in the ballot box shall be added to the number of other ballots deposited in the ballot box to determine the total number of ballots in the ballot box. The ballots shall then be counted or canvassed by the inspectors along with the other ballots cast at the school district election, or, where voting machines are used, shall be added to the votes recorded on the machines.
For School Districts that do not Provide for in Person Registration of Voters:
The above-described process is applicable to school districts located in counties with a population of at least one million that do not provide for in person registration of voters, with the following variations. In addition to submitting an application form for an early mail ballot by mail or in person, voters also may request an early mail ballot by letter. The district clerk or other designee of the trustees or school board must mail an early mail ballot, together with a form application for an early mail ballot, to any qualified voter who requests one by letter signed by the voter and received no earlier than the thirtieth and no later than the seventh day before the election. Such ballot may only be counted if the voter returns a signed valid application with the ballot.
As such school districts have no board of registration, it is the district clerk or other designee of the trustees or school board who makes an entry on the poll list as required by N.Y. Educ. Law § 2029 of voters who applied for and are issued early mail ballots. It is also the district clerk or other designee of the trustees or school board who compiles a list of those who have been issued early mail ballots.
The legislation enacting early mail voting provides a process and timelines nearly identical to those used for absentee voting. Implementing early mail voting for school district elections should therefore prove straightforward.
Our office remains ready to answer any questions or assist you in determining how individual situations should be addressed. Please contact any of the firm’s Education Law attorneys for assistance.