When a New York village voter selects the same person for two incompatible offices on one ballot (printed for one, write-in for the other), how should the votes be counted?

Plain-English summary

The Village of Saltaire has a small electorate with heavy write-in activity. Some ballots in village elections show the same person selected for two offices that the same person cannot legally hold at the same time, like mayor and trustee. Typically, the candidate is on the printed ballot for trustee, and a voter writes the same candidate in for mayor (or the reverse). The village attorney asked: does the canvasser count both votes, only one, or neither?

The Attorney General's answer is neither. Election Law § 9-112(6) directs canvassers to treat a vote as blank for an office if it is impossible to determine the voter's choice. Combined with Election Law § 6-122 (which prevents a candidate from being nominated for an office the candidate cannot legally hold) and the New York Court of Appeals decision in In re Burns v. Wiltse, 303 N.Y. 319 (1951), the result is that you cannot become a candidate for two incompatible offices in one election, whether through nomination or through write-in. So the ballot does not produce a usable vote for either office, and both go in the blank pile.

The opinion walks through and rejects the alternative approaches: counting both votes (would let one person be a candidate for two offices, contrary to Burns), counting one (no principled way to choose which), or following Wisconsin's approach in Erickson (the Wisconsin court relied on the absence of a candidacy ban, which New York has). It comes out closer to California's Keane v. Smith (1971), which reached the same blank-vote outcome.

What this means for you

If you are a village or town election inspector or canvasser

When you see a ballot where the same person appears as a printed candidate for one office and a write-in for an incompatible office, treat both votes as blank for those two offices. Other valid votes on the same ballot for other offices still count. The opinion's reasoning is built around §§ 9-112(6) and 6-122 plus Burns, all of which are formally state-wide and not specific to any particular village.

If you are a candidate or running a campaign in a village election

Do not solicit write-in votes for an office that is incompatible with the office you are nominated for. Soliciting cross-office write-ins risks the very ballots you depend on being treated as blank for both offices. If you want to run for the other office instead, withdraw from the first.

If you are a village attorney advising on close races

This opinion gives you a clean rule for canvassing. Document the ballot pattern, apply the blank-vote treatment for the two affected offices, and if the result is contested in court, the opinion plus Burns should support the canvass as a matter of law.

If you are the voter making the choice

Pick one office. Voting for the same person on both lines gives you no vote for either office under New York law. If you want a particular person to fill a specific office, make sure your only mark for that person is in the printed line for that office (or only the write-in line for that office).

Common questions

Q: Does this only apply to village elections?
A: The opinion responds to a village election question, but the underlying statutes (Election Law §§ 6-122, 9-112(6)) are general. Town, school district, and other at-large elections with write-ins for incompatible offices should follow the same rule. The opinion notes (in the closing) that the AG's formal opinions go to state officers; this is informal because it advised a village attorney, but the legal analysis applies state-wide.

Q: What if the offices are not incompatible?
A: Then the analysis does not apply. A person can hold non-incompatible offices simultaneously, and the votes can be counted normally.

Q: Does the rule apply when the ballot directs a voter to choose multiple candidates for one office (like 'Vote for 2')?
A: Yes. Footnote 3 confirms that votes for other candidates on the same ballot for that multi-vote office still count. Only the two incompatible-office votes for the same person become blank.

Q: What if the voter writes in two candidates and they are different people?
A: This opinion does not apply because there is no overlap. Standard counting rules apply.

Q: How does this differ from California or Wisconsin?
A: California reached the same blank-vote conclusion in Keane v. Smith under reasoning that mirrors New York's. Wisconsin in Erickson counted both votes because Wisconsin law allowed cross-office candidacy. New York is closer to California: candidacy for incompatible offices is barred.

Q: Is this opinion controlling on courts?
A: No. AG opinions are persuasive only. But the supporting authorities (Court of Appeals' Burns, Election Law § 9-112(6)) carry their own weight, so a court would likely reach the same result.

Background and statutory framework

The relevant New York incompatibility rule is structural. Village Law § 3-301(4) makes the mayor and trustees together the village board of trustees, with the mayor presiding. Section 3-312(5) provides that a trustee appointed to fill a mayoral vacancy automatically vacates the trustee seat. The two roles cannot run in parallel. The Court of Appeals confirmed in In re Burns v. Wiltse, 303 N.Y. 319 (1951), that a person cannot be nominated for two incompatible offices at the same election under Election Law § 6-122. The Second Department applied the rule in In re Lawrence v. Spelman, 264 A.D.2d 455 (2d Dep't 1999).

Once the candidacy ban is set, the question becomes how to count a ballot that violates it. Election Law § 9-112 lists scenarios for invalidating votes. Subsection (3) addresses write-in votes that duplicate a printed name for the same office. Subsection (4) addresses voters who select the same candidate twice for one office (count the first only). Subsection (6) is the catch-all: when the voter's intent cannot be determined, the vote is treated as blank for that office. The opinion fits the incompatible-offices situation under § 9-112(6) because there is no principled way to determine which of the two offices the voter would have chosen had the choice been forced.

The opinion canvasses outside-state authority. California's Keane v. Smith, 4 Cal. 3d 932 (1971), addresses ballots that selected one candidate for both judge and district attorney. The court there walked through four hypothetical voter intents and concluded none could be determined from the ballot alone, so the votes became blank. Illinois' Misch v. Russell, 136 Ill. 22 (1891), counted votes for an incompatible-offices candidate but did so under Illinois law that did not bar dual candidacies. Wisconsin's Erickson, 147 Wis. 2d 467 (1988), counted both votes on the same theory, distinguishing Keane on the ban issue. New York looks more like California than like Illinois or Wisconsin: candidacy for incompatible offices is barred, so the Keane logic controls.

Citations and references

Statutes:
- Village Law §§ 3-301(4), 3-312(5), mayor/trustee structure and vacancy fill
- Election Law § 6-122, no nomination for office candidate cannot hold
- Election Law § 9-112: vote-counting rules; specifically subsection (6) (impossible-to-determine becomes blank)

Cases:
- In re Burns v. Wiltse, 303 N.Y. 319 (1951), incompatibility prevents simultaneous nomination
- In re Lawrence v. Spelman, 264 A.D.2d 455 (2d Dep't 1999), incompatibility application
- Keane v. Smith, 4 Cal. 3d 932 (1971), California blank-vote rule on incompatible-offices ballot
- In re Appeal of Bd. of Canvassers v. Erickson, 147 Wis. 2d 467 (1988), Wisconsin contrary rule (distinguished)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2021-2_pw.pdf

Original opinion text

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

Informal Opinion
No. 2021-2

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)
☐ Candidate A
☐ Candidate B
☐ Candidate C
☒ Candidate E
Write in

Trustee (Vote for 2)
☒ Candidate D
☒ Candidate E
☐ Candidate F
☐ Candidate G
☐ _____
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 § 9112(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
2 In 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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