Counting and Certifying the Vote: What Happens in New York State After the Polls Close

By Jennifer Hutz

Especially since the 2020 elections, national attention has focused on what happens after the polls close on Election Day. The mundane and straightforward task of counting ballots has become a hot button issue as an increased number of public officials have attempted to delay or deny certification of the ballot count. Although media attention has heightened following efforts to challenge the 2020 results, attempts to delay certification have been happening since the earliest days of our nation. However, over one hundred years of court precedent and many state laws define certification as non-discretionary and a ministerial task that signifies the end of the ballot count, known as canvassing.

Certification does not negate challenges to the ballot count. Candidates and voters can contest the results through recounts, audits, and the court system. Ben Berwick of Protect Democracy describes the role of certification as a scorekeeper at a football game: their only job is to record the score, any penalties on the field getting to that score are the job of the referee, who determines if the rules of the game are followed. To date, court orders have required all election officials attempting to delay or deny certification to certify, further enforcing that certification is a ministerial non-discretionary task.

In New York, the process of what happens after the ballots are cast is an intricate and carefully prescribed process laid out within the 950 pages of the Election Law Rules and Regulations. The following summarizes the process of ballot counting and canvassing found in New York State’s Election Laws. 

New York State elections are run by the State Board of Elections and county boards of elections (New York City has its own board of elections that covers the city’s five counties). The State Board of Elections is composed of four commissioners evenly split between the two largest political parties. The two largest parties are determined by the votes cast at the previous gubernatorial election, currently Republicans and Democrats. The governor appoints the four commissioners, two on nomination of the state party chairs, and two on the nomination of the parties’ legislative leaders. Each county board of elections, depending on the size of the county, is composed of two to four election commissioners nominated by the two major political parties. The State Board of Elections oversees the administration of the elections, state voter registration, and state voter rolls and provides campaign finance oversight, election law enforcement, voter education and information, election security and certifying of state election results. The county boards of elections conduct the elections; they also handle local voter registration and local voter rolls, voter education and information, staffing and training poll workers, and certifying local election results.

The election boards are also the boards of canvassers. Canvassers are responsible for counting ballots and providing vote totals. Election districts, various small geographic areas where voters are assigned to vote, have four election inspectors as well as a number of poll clerks and election coordinators. The size of election districts are meant to be relatively small so vote counting is efficient and accurate.

All election officials are equally divided by the major political parties. Watchers from each political party, representatives of the candidates, and independent bodies are allowed to be present throughout the canvass. Although it may seem that election results are known on election night or the next day, the county board of canvassers have up to 25 days to certify the results and send them to the State Board of Elections. In a presidential election year, the State Board of Elections then must get certification to the Electoral College by a prescribed date mid-December.

Counting In-Person Votes

On Election Day, polling sites in New York are required to be open from 6:00 AM to 9:00 PM; and anyone in line at 9:00 PM must be allowed to vote. Once the last vote is cast, the election inspectors start the canvass of Election Day in-person votes.

To start the canvass, an election inspector secures each ballot scanner to prevent additional voting. Inspectors then account for all the paper ballots, including spoiled, unused, and affidavit ballots. If there are ballots in the emergency ballot box, they are removed and scanned. (Emergency ballot boxes are secure boxes used to place ballots that are unable to be scanned, including ballots cast while there was a mechanical issue with the scanner and provisional ballots.) In the presence of any canvass watchers, the inspector prints out a tabulated results tape from each scanner and announces the results.

Any ballots that were unable to be scanned will be hand-counted and each vote is announced in the presence of the canvass watchers and added to the ballot reconciliation form. The scanners print out the returns; one copy with any hand-counted ballots added, is signed by the inspectors and becomes the official canvass for the election district and is delivered to the county board of elections.

To give the media and public timely, unofficial results, the inspectors will remove a portable thumb drive counter from each ballot scanner. In many counties those results are uploaded at the poll site and transmitted to the county boards; in others the thumb drives are promptly transported to a central location, where they are uploaded to the county’s unofficial election night canvass system for posting on the internet.

The thumb drives containing early voting results are not canvassed at the poll sites, but delivered to the county boards before the commencement of Election Day voting. The unofficial early voting returns can be released publicly at the close of Election Day voting.

Early Mail, Absentee, Military and Special Ballots

Early voting by mail, absentee, military, and special ballots are counted by a central board of canvassers within four days of receipt or one day after Election Day. Central board of canvassers are a set of poll workers assigned to review the incoming ballots for each election district.

Once it is determined that an individual voter who has voted by mail is properly registered for a mail-in ballot, the envelope is opened, the ballot removed and placed face down in a secure box and held until the appropriate time to scan – either the day before the first day of early voting or after the close of polls on the last day of early voting. These scans will be included in the unofficial reports that can be initially released after the close of the polls on Election Day. As soon as the voter is deemed eligible to vote via early mail, absentee, military or special ballot and their ballot is placed in the secure box, the voter’s record is immediately updated that they have voted in the election.

If ballots require post-election review for lacking specific criteria (ie: voter not registered or no voter name on the envelope), they are set aside. If ballots have curable defects, defects that can be remedied so that the ballot can be counted, including lack of signature, non-matching signature, etc., the voter will be notified via mail within one day. If provided in the voter file, they will also be notified by phone or email.

For curable defects, the voter can sign an affirmation curing the issue and return it by mail, in person or electronically within seven days after the election and their ballot will be counted by the central board of canvassers. If the cure is received prior to Election Day, it will be included in the Election Day canvass. If it arrives the day after Election Day canvas it will be included in the post-election canvass. 

Scanned in-person early votes, early mail, absentee, military and special ballots totals may be tabulated as early as one hour prior to the close of the polls on Election Day, but no unofficial results can be publicly announced until after the polls close.

Affidavit Ballots

If a voter’s eligibility to vote at a particular polling place is unable to be verified at the time they arrive to vote, they can cast an affidavit ballot. Affidavit ballots must be reviewed and investigated within four days of the election. If it is determined that the voter was eligible to vote, their ballot is counted.

Once all ballots are accounted for, a majority of members of the board of canvassers signs a statement of canvass, separately detailing the votes cast for each candidate and each ballot proposal. Tabulation tapes of the counted ballots are also submitted with the statement. The statement of canvass must be delivered to the State Board of Elections in Albany within 25 days of the election by personal delivery or certified mail. (In New York City, the NYPD or a peace officer delivers the results to Albany.)

State Board of Canvassers

Once all the ballots are thoroughly canvassed and recorded, each board of canvassers must send the certification to the State Board of Elections within 25 days of the election. If the certification is not received by the 25th day, a special messenger will be dispatched to obtain the certification, and the board of canvassers must immediately deliver the certification to the messenger. The State Board of Canvassers (also the State Board of Elections) canvasses the certified copies of the statements from each county board of canvassers on the first Monday after the first Wednesday of December. The process cannot take longer than five days.

If any member of the State Board of Canvassers protests the proceedings, they must state the protest in writing and file with the office of the State Board of Elections. When the canvass is complete, the State Board of Canvassers will create separate tabulated statements, signed by a majority of the board with the total number of votes cast for each candidate and file it in the office of the State Board of Elections. The State Board of Elections will then send a certified copy of the canvass to the U.S. House of Representatives with the results of who won each congressional race in the state. Similarly, the State Board sends notice to the Secretary of the United States Senate. For state legislative and judicial contests, the State Board prepares certificates of election, which are filed with the New York Secretary of State and to each successful candidate.

For presidential elections, the state Board of Canvassers also prepares seven lists with the names of the electors elected for each presidential candidate and a canvass of the votes cast for each slate of electors, signed by the Governor and under seal of the State. Six of these lists will be used by the Electoral College to sign when they meet. One list is sent to the administrator of the National Archives by the most expeditious method available.

Mandatory Recounts and Audits

Each county board of elections conducts a mandatory recanvass of the tabulated results tape, paper ballots that were hand-counted and write-in votes and compares each with the numbers on the return of canvass. Manual recounts are mandatory when the margin of victory is 20 votes or fewer; the margin of victory is 0.5% or less; or in a contest where 1 million votes were cast and the margin of victory is less than 5,000. Manual recount totals supersede the initial canvass tabulation.

There is also a mandatory audit within 15 days of Election Day. Each county board of elections conducts a mandatory audit of three percent of the voting machines for voter verifiable audit records. Within three days of the election, the State Board of Elections will audit the central count scanners by auditing ballots in three percent of election districts. The certification should not wait for audits to be completed in order to certify the results. If audits affect the results of the canvass, the board of canvassers will reconvene and adjust the canvass as required.

If there is any question by a candidate or voter to the validity of a vote or the canvass, they can contest through the court system. Certification can be updated through the post-election process at any time if deemed necessary by the courts.

Electoral College

Once the State Board of Elections has received the certified ballot totals from every county elections board, the electors of the party of the presidential candidate that won the state popular vote convene in the state capital on the first Tuesday after the second Wednesday in December. Electoral college membership from the state is composed of electors nominated by their party before the general election and equals the total number of New York State representatives in Congress (currently 26 members in the House of Representatives and two Senate seats, making 28 total).  In New York, the party whose presidential and vice presidential ticket wins the popular vote in the state wins all the electoral votes.

Electors are party loyalists, activists, and local leaders. Any vacancies in the electoral college caused by death, refusal to serve, or neglect are filled immediately when the electors meet at the Capitol by a majority vote of the electors for newly nominated electors.

The electors vote separately and non-anonymously for the president and vice president. If an elector fails to vote for the candidate they were nominated to represent, this constitutes a resignation from their position, their vote is not recorded and their position is immediately filled by a majority vote of a new nominee. Once ballots with the name of each elector are placed separately for the president and vice president, each elector signs the six certificates to be submitted with the six lists provided by the State Board of Elections. The certificates are immediately distributed via the most expeditious method available. One certificate is sent to the President of the United States Senate; two are delivered to the State Board of Elections, with one to remain public for inspection; one is delivered to the Chief Judge of the United States District Court of the Northern District of New York; and two are delivered to the National Archive.

By federal law, national certification of the election is on January 6th (if January 6th falls on a Sunday, the law is changed for that year). Congress meets for a joint session to ceremoniously count the electoral votes. As the final step of the election process, the President-elect and Vice President-elect take the Oath of Office at noon on January 20th, becoming the President and Vice President at that time. If January 20th falls on a Sunday, inauguration is on Monday, January 21st.

From county board of elections to the State Board of Elections and ending with the electoral college, the process of canvassing and certifying the election in New York State is a ministerial, arithmetical duty that ensures every legal ballot cast is counted. Automatic audits and recounts are embedded in the process to fully ensure accurate results. The system allows for contests alleging irregularities in the voting process to be solved expeditiously through the courts. If judicial decisions affect ballot totals, certified results can still be adjusted. New Yorkers can rest assured that the system’s multi-tiered checks and balances make it so that the ballot counting process is straightforward, transparent, thorough, and secure.

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Jennifer Hutz is a student at New York Law School.