Informal Opinion No. 2021-2
Office of the Attorney General, State of New York
November 23, 2021
Village Law §§ 3-301(4) and 3-312(5); Election Law §§ 9-112(3), (4), (6) and 6-122
A ballot that contains two votes for the same person for incompatible offices, one printed and one written in, should be counted as a blank vote for both of those offices.
November 23, 2021
Joseph W. Prokop
Village Attorney
Village of Saltaire
225 Broadhollow Road
Suite 301E
Melville, New York 11747
Dear Mr. Prokop:
You have requested an opinion relating to the counting of an election ballot when a voter has selected the same person for two incompatible оffices, one where the candidate‘s name is printed (for example, for the office of village trustee) and the other in the space for a write-in (for example, for the office of village mayor).1 You state that the office of village trustee and the office of village mayor are incompatible — i.e., that a person cannot hold both offices at the same timе — and we agree.
The
More helpful in analyzing the question you present is the body of law concerning whether a person may be a candidatе for two offices at the same time. This question ordinarily arises before any votes are cast, at the time when nominations are made and before ballots are printed. The
We think that principle also bars a person from becoming a candidate for two incompatible offices at the same time by means other than by appearing on the ballot as a nominee. When a candidate solicits write-in votes for an officе other than the one for which the candidate has been nominated, or when such write-in votes are solicited on the candidate‘s behalf, the effect on the voters is similar to the effect оf nominating the candidate for two offices. In either case, voters are led to believe they are voting for someone who, if elected, could legally qualify to take and hold officе, when in fact that person may not qualify if elected to both offices. That was the flaw that led the Court in Burns to rule that the law bars a person from being nominated
You have suggested three possible approaches to counting the votes on a ballot that contains one vote for a person for an office to which the person has been nominated and also a write-in vote for the same person for a different and incompatible office. First, both votes could be counted, one for the office for which the candidate‘s name is printed as a candidate and one for the office for which the candidate‘s name appears as a write-in vote. Second, only one of the two votes could be counted. Third, neither vote could be counted for a person who has received votes for two incompatible offices.
The first alternаtive, counting the votes for both incompatible offices on a single ballot, would be inconsistent with the principle that one person cannot be a candidate for two incompatiblе positions.
The second alternative, counting only one of the votes, might be feasible if there were a practical way to determine which vote the voter would have preferred tо count. While we have identified no New York appellate decisions on point,2 courts outside of New York have taken different views of this possibility.
In Keane v. Smith, 4 Cal. 3d 932 (1971), California‘s highest court considered how to count eight ballots that selected candidate Smith‘s name where printed under the office of judge and also selected and wrote in Smith‘s name under the incompatible office of district attornеy. The court considered four possible intents of the voters so marking their ballots: first, the voter may have intended to vote for Smith for both offices, in which case the ballot had to be disregarded because Smith could not hold both offices simultaneously. Second, the voter may have intended to vote for Smith for only one of the offices but mistakenly marked his name twice. Third, the voter may have intended to vote for Smith for one of the offices, and to vote for him for the other office if he did not win a majority for the first office. Finally, the voter may have intended Smith to be elected to whichevеr of the two offices he chose to fill. 4 Cal. 3d at 940. The court concluded that the voters’ intent could not be determined from the ballots, and therefore that their votes could not be counted for eithеr office.
Courts in Illinois and Wisconsin, by contrast, have reached different conclusions. The Illinois case involved ballots that reflected two votes each for a
Subsequently, a Wisconsin appellate court considerеd a case involving ballots that reflected two votes each for a candidate whose name was printed on the ballot as a candidate for mayor and written in as a candidate fоr alderman. The Wisconsin court ruled that the ballot should be counted for both offices. In re Appeal of Bd. of Canvassers v. Erickson, 147 Wis. 2d 467 (1988). The Wisconsin court reasoned that “[a]bsent legislation to the contrary . . . an alderman, eligible to run for mayor, may choose between the two offices if elected to both.” 147 Wis. 2d at 474. The Wisconsin court distinguished Keane on the ground that in Wisconsin a person was permitted to run simultaneously for two incompatible positions.
As discussed above, New York law, like California‘s, prohibits a candidate from simultaneously running for incompatible offices. Moreover, it will ordinarily be impossible to determine which office the voter would have selected, if required to make a choice. Accordingly, we are of the opinion that a ballot that contains two votes for the same person for incompatible offices, one printеd and one written in, should be counted as a blank vote for both of those offices.3 This rule is most consistent with the rule of
The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opiniоn rendered to assist you in advising the municipality you represent.
Very truly yours,
KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions
Notes
A ballot of the type at issue might be completed as follows: