Untitled New York Attorney General Opinion

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 Informal Opinion
Village Attorney No. 2021-2
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 offices, 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 time – and we agree. Village
Law § 3-301(4) (mayor and trustees comprise board of trustees); Op. Att’y Gen. (Inf.)
No. 87-83 (offices incompatible); see also Village Law § 3-312(5) (trustee vacates office
if appointed to fill vacancy in office of mayor). Consequently, one person’s name
cannot appear printed on a ballot as a nominated candidate for both village mayor
and village trustee. See In re Burns v. Wiltse, 303 N.Y. 319 (1951); In re Lawrence v.
Spelman, 264 A.D.2d 455 (2d Dep’t 1999). Therefore, the issue of how to count ballots
containing votes for one person for two incompatible offices arises principally in
connection with write-in votes.
1 A ballot of the type at issue might be completed as follows:
Mayor (Vote for 1) Trustee (Vote for 2)
☐ Candidate A ☒ Candidate D
☐ Candidate B ☒ Candidate E
☐ Candidate C ☐ Candidate F
☒ Candidate E ☐ Candidate G
Write in
☐ ___________
Write in
We understand that the village electors have a substantial history of
significant write-in activity on their ballots, and thus this is a recurring and
potentially significant issue. As explained below, we believe that the practice most
consistent with the Election Law is to count neither of the votes for the selected
person.
The Election Law expressly lists certain situations when votes shall not be
counted, but none of them applies here. First, a write-in vote may not be counted if
the voter has not written the name on the ballot in the proper place under the title of
an office, or if the name is also printed on the ballot under the title of that office.
Election Law § 9-112(3). Next, when a candidate’s name appears on the ballot more
than once for the same office (on different party lines, for example) and is marked
more than once, votes after the first vote may not be counted. Election Law § 9-
112(4). Finally, if a voter marks more names than there are persons to be elected to
an office, or if for any reason it is impossible to determine the voter’s choice of
candidate for an office, that vote is not counted but is treated as a blank vote for that
office. Election Law § 9-112(6).
More helpful in analyzing the question you present is the body of law
concerning whether a person may be a candidate 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 Election Law provides that
a person cannot be nominated for an office that he or she will not be eligible to hold.
Election Law § 6-122. And the Court of Appeals has interpreted that provision to
mean that a person cannot be nominated at the same time for two offices that cannot
be simultaneously held. In re Burns v. Wiltse, 303 N.Y. at 323. In reaching that
conclusion, the Court rejected the view, advanced by the dissent, that there was no
ineligibility until the person accepted the other office, and thus there was no ban on
nominating a person for two incompatible offices, but only a ban on accepting both
offices. Id. at 329. Thus, the law of New York is that a person may not appear printed
on the ballot as a nominee for two incompatible offices.
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 office 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 of
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 office,
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
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for two incompatible offices, and it also bars a person from becoming a candidate for
two incompatible offices through write-in voting.
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 alternative, 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 incompatible 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 to 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 attorney. 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 whichever 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 either office.
Courts in Illinois and Wisconsin, by contrast, have reached different
conclusions. The Illinois case involved ballots that reflected two votes each for a
2In In re Bennett v. Board of Educ., 10 Misc. 2d 804 (Sup. Ct., Onondaga Co. 1957); aff’d, 6 A.D.2d 989(4th Dep’t 1958), the court briefly discussed ballots with two votes for a single write-in candidate,
recognizing that the written-in candidate conceded that only the vote written in the space for the office
the candidate campaigned for could be counted. The court did not appear to consider whether neither
vote should be counted. Even with these votes counted, the written-in candidate lost.
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candidate whose name was printed on the ballot for two incompatible offices (school
board president and school board member). The Illinois court permitted the votes
selecting the candidate as school board president to be counted to give him a majority
for that office, without deciding whether or how to count the votes for the candidate
as school board member. Misch v. Russell, 136 Ill. 22, 31-32 (1891). The California
court distinguished Misch on the ground that Illinois law, unlike California law, did
not prohibit a candidate from being voted for incompatible positions at the same
election. 4 Cal. 3d at 942.
Subsequently, a Wisconsin appellate court considered 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 for 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 printed 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 Election Law § 9-112(6), that if for any reason it is impossible to determine
the voter’s choice of candidate for an office, that vote is not counted but is treated as
a blank vote for that office.
The Attorney General issues formal opinions only to officers and departments
of state government. Thus, this is an informal opinion rendered to assist you in
advising the municipality you represent.
Very truly yours,
KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions
3 Where the ballot directs the voter to select more than one candidate to fill multiple vacancies (two
trustee vacancies, for example), the votes for other candidates would still be counted for that office.
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