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

Village or town election inspectors and canvassers

The AG concluded that where the same person appears as a printed candidate for one office and a write-in for an incompatible office, both votes should be treated as blank for those two offices. The opinion grounds this in Election Law § 9-112(6), § 6-122, and Burns v. Wiltse, which are state-wide rules and not specific to any particular village. Other valid votes on the same ballot for other offices are unaffected by the opinion.

Candidates and campaigns in village elections

The AG concluded that one person cannot be a candidate for two legally incompatible offices in the same election, whether through nomination or through write-in. The opinion treated solicitation of write-in votes for an incompatible office as producing a ballot that yields no vote for either office.

Village attorneys advising on canvassing

The AG provided the rule for canvassing this ballot pattern: blank-vote treatment for the two affected offices. The opinion's analysis rests on §§ 9-112(6) and 6-122 and Burns v. Wiltse. The AG did not address how a court would treat a contested canvass that applied or departed from this rule.

Voters

The AG concluded that voting for the same person on two ballot lines for incompatible offices produces no vote for either office under New York law.

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 2

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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