Untitled New York Attorney General Opinion, 2021-2

Village attorney asked whether to count ballots where the same person is chosen for two incompatible offices on one ballot: once as a printed nominee for one office and once as a write‑in for an incompatible office.
Mayor and trustee are incompatible offices under Village Law; a person cannot be a candidate for both.
Election Law contains specific rules about not counting certain write‑in votes, but none expressly addresses a vote for the same person for two incompatible offices (printed + write‑in).
New York precedent (In re Burns) bars nominating a person simultaneously for two incompatible offices; AG extended that principle to write‑in efforts that effectively create a dual candidacy.
The Attorney General concluded that such ballots should be treated as blank for both offices and not counted under Election Law §9‑112(6) (impossible to determine voter’s choice).

Issue	Plaintiff's Argument	Defendant's Argument	Held
How should a ballot be counted when it contains two votes for the same person for incompatible offices (one printed, one write‑in)?	Prokop/village suggested three options: count both; count only one; count neither.	AG: counting either/both would permit an effective dual candidacy; inconsistent with Burns; treat as blank.	Ballot treated as blank for both offices; neither vote counted.
Do existing Election Law provisions directly forbid counting the write‑in when the name is printed for an incompatible office?	Village: no specific provision squarely addresses this precise scenario.	AG: statutes listed do not explicitly cover it, but §9‑112(6) (indeterminate choice) applies by analogy.	Apply §9‑112(6): if voter’s intent cannot be determined, vote is not counted and is treated as blank.
Can voter intent be inferred to salvage one of the votes (count one rather than neither)?	Village/others: some jurisdictions infer intent or count one vote where feasible.	AG: under NY law and Burns, it is ordinarily impossible to determine intent; other jurisdictions’ approaches depend on different statutory rules.	Intent cannot usually be determined; neither vote should be counted.

In re Burns v. Wiltse, 303 N.Y. 319 (1951) (precludes nominating a person simultaneously for two incompatible offices).
In re Lawrence v. Spelman, 264 A.D.2d 455 (1999) (confirms incompatibility principle in modern practice).
Keane v. Smith, 4 Cal. 3d 932 (1971) (California court declined to count ballots selecting one person for two incompatible offices where intent was indeterminable).
Misch v. Russell, 136 Ill. 22 (1891) (Illinois court allowed counting votes for one office despite dual markings under Illinois law).
In re Appeal of Bd. of Canvassers v. Erickson, 147 Wis. 2d 467 (1988) (Wisconsin court counted both votes where state law permitted simultaneous candidacies).