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School District Elections and Budget Vote

THE STATE EDUCATION DEPARTMENT/THE UNIVERSITY OF THE STATE OF NEW YORK/
ALBANY, NY 12234

Counsel and Deputy Commissioner for Legal Affairs
Tel. 518-474-6400
Fax 518-474-1940

 

TO:                 District Superintendents of Schools
                        Superintendents of Public Schools
                        School Attorneys
 

FROM:           Kathy A. Ahearn         

DATE:            April 28, 2009

RE:                 School District Elections and Budget Votes

The State Education Department (“SED”) has recently received inquiries from school districts and their attorneys regarding the continued use of lever machines at school district elections and budget votes, in light of the passage of the federal Help America Vote Act (“HAVA”) and Chapter 506 of the Laws of 2007.  As you know, HAVA establishes certain requirements for voting systems used in federal elections, and Chapter 506 implements HAVA in New York.  In response to these inquiries, Office of Counsel is reviewing state and federal law and anticipates issuing guidance to districts at a future date.  In the meantime, however, we offer the following information for your consideration as the election and budget season approaches.

Section 11 of Chapter 506 of the Laws of 2007 (“section 11”) provides, in pertinent part:

All voting machines currently in use in New York shall be replaced with voting machines or voting systems which meet the requirements of section 7-202 of the election law and the federal Help America Vote Act.

            . . .

Up to and until the replacement of existing voting machines by voting machines or voting systems which meet the requirements of section 7-202 of the election law, the provisions of this act which pose new standards for voting machines which were not required prior to the effective date of this act, including the amendments to section 7-202 of the election law made by section six of this act, shall not be applicable with respect to such existing machines.[1]

 

Section 11 does not establish a deadline by which the State Board of Elections must approve voting machines or voting systems that meet the requirements of Election Law section 7-202.  The State Board of Elections has confirmed that it has not yet done so.  As a result, regardless of whether HAVA or section 11 are eventually found to apply to school district votes, school districts may continue their current voting machine arrangements, including lever machines, for the upcoming elections and budget votes.

     If you have any further questions, please direct them to your school district attorney, or write to legal@mail.nysed.gov.

[1] This provision repealed Section 11 of Chapter 181 of the Laws of 2005, which stated, in pertinent part:  “Effective September 1, 2007, all lever machines in New York [S]tate shall be replaced by voting machines or voting systems which meet the requirements of section 7-202 of the election law…”