§ 88. Preservation of records and papers.

At all reasonable times any watcher shall have reasonable opportunity to make a transcript of any such statement, or any portion thereof and any candidate shall be entitled to receive, upon demand, a written statement showing the result of the primary election so far as he is concerned.

After the close of the canvass of the votes at official primary elections, the ballots of each party cast thereat, except the protested, void and wholly blank ballots, shall be tied together, labeled and replaced in the ballot boxes from which they were respectively taken, and such ballot boxes shall then be securely locked and sealed, and, together with the box containing the stubs, shall be returned to the officer from whom they were received, who shall safely keep the same, subject, however, to be produced upon the order of any court of record or judge thereof, for not less than thirty days after such primary election, and until all suits or proceedings before any court or judge touching the same shall have been finally determined, when the ballots and stubs shall be removed and without examination, destroyed. In the case of a contested nomination for office or a contested election to a party position any candidate shall be entitled as of right to an examination in person or by authorized agents of any primary ballots upon which his name lawfully appeared as that of a candidate; but the court shall prescribe such conditions, as of notice to other candidates or otherwise, as it shall deem to be necessary and proper. The custodian of primary records shall preserve for at least two years all books, records, petitions, objections, certificates and papers filed with him under any provision of law for a period of at least two years, at the expiration of which time all such books, records, petitions, objections, certificates and papers may be destroyed by such custodian.

Derivation: Formerly § 62. Renumbered and amended by L. 1911, ch. 891; amended by L. 1913, ch. 820, in effect Dec. 17, 1913. Originally revised from Primary Election Law, § 8, subd. 3, as amended by L. 1905, ch. 207, § 1.

§ 89. Canvass of statements of results; certificates of election to party position.

1. Canvass by custodians of primary records. The custodian of primary records shall forthwith proceed to canvass the statements of results filed with him as provided in this article, and shall com

plete such canvass within one hundred and twenty hours from midnight of the day upon which the primary election was held.

He shall canvass separately the votes cast in each election district by the enrolled voters of the several parties respectively.

The candidate for a party nomination to publie office, or for election to a party position, to be filled by the voters of a territory wholly within an election district, ward or town, who has received the highest number of votes cast in the primary election of a party in such election district, ward or town, shall be the nominee of said patry for such public office, or shall be elected to such party position. Said custodian shall deliver upon request to such candidate, if he be elected to a party position, a certificate of his election.

The candidate for a party nomination to public office, or for election to a party position, to be filled by the voters of a district wholly within the jurisdiction of a custodian of primary records and greater than an election district, ward or town, who has received the highest number of votes cast in the primary election of a party in such district shall receive the nomination of said party for the public office, or be elected to the party position, for which he was designated or voted for. The custodian of primary records shall deliver upon request to such candidate, if he be elected to a party position, a certificate of such election.

The custodian of primary records shall duly certify to the secretary of state a statement of the vote cast in the county in the primary election by the enrolled voters of each party, respectively, for all candidates for nomination for public office, or for election to party position, whose designations are required by this chapter to be filed in the office of the secretary of state. Such statement shall be filed by such custodian in the office of the secretary of state within one hundred and twenty hours from midnight of the day on which the primary election was held.

2. Canvass by the secretary of state. The secretary of state shall forwith proceed to canvass the certified statements so filed with him, and such canvass shall be made separately as to the can didates of each party.

The candidate voted for at an official primary election who has the highest number of votes shall receive the nomination of said party for the public office, or be elected to the party position, for which he was designated or voted for. The secretary of state shall forthwith transmit to each candidate elected to a party position a certificate of such election.

3. A certificate of election to party position at an official primary of a party duly issued as herein provided shall entitle the person to whom it is issued to membership in the committee or to a seat in the national convention to which he is elected. Upon the completion of said canvass to be made by the secretary of state, he shall prepare certified statements of the result of the primary election of each party participating therein.

4. The statements of result of any official primary election filed or prepared in the office of a custodian of primary records or of the secretary of state showing the nomination of a party candidate for public office at an official primary election shall be equivalent to a certificate of his nomination, and no other certificate of nomination shall be required to be filed for any such candidate so nominated.

Added by L. 1911, ch. 891, and amended by L. 1913, ch. 820 and L. 1914, ch. 244, in effect Apr. 8, 1914.

Duty of custodian is ministerial. - The duty imposed upon the custodian of primary records by this section to deliver the certificate of nomination to the person who, by the statement filed and canvassed, is shown to have been nominated, is ministerial and not judicial, and he has no power to receive or act upon affidavits tending to explain, vary or contradict such statement and he cannot therefore determine that certain votes cast for a candidate having a similar name as one of the other candidates were intended for such other candidate. People ex rel. Calihan v. Hunt (1902), 75 App. Div. 33, 77 N. Y. Supp. 973, rev'g 36 Misc. 622, 74 N. Y. Supp. 399.

Nor has the court any power to receive or consider such affidavits in the proceeding instituted to review the action of the custodian of primary records in refusing to issue a certificate of nomination to the relator. People ex rel. Calihan v. Hunt (1902), 75 App. Div. 33, 77 N. Y. Supp. 973, rev'g 36 Misc. 622, 74 N. Y. Supp. 399.

890. Filling vacancies and determination of tie vote after primàries.

A vacancy in a nomination for public office made at a primary election shall be filled as follows: A vacancy caused by the declination, disqualification or death of a candidate, or by a tie vote, shall be filled by a majority vote of a quorum of the state committee, if

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the vacancy occur in a nomination for an office to be filled by all of the voters of the state, and otherwise by the members of the county committee or committees elected at such primary in the political subdivision in which such vacancy occurs, or by such other committee as the rules and regulations of the party may provide. Certificates of such nomination shall be filed in the office in which a designation of a candidate for such office is required to be filed.

Added by L. 1911, ch. 891, and amended by L. 1913, ch. 820, in effect Dec. 17, 1913.

91. Party nominations for special elections and to fill certain

vacancies.

Party nominations to an office to be voted for at a special election shall be made in the manner prescribed by the rules and regulations of the respective parties. A party nomination of a candidate for a vacancy in an elective office required to be filled at the next general election, occurring after the expiration of the period provided for the delivery by the chairman of a general committee to the custodian of primary records of the certified statement provided for in section seventy-five, shall be filled by a majority vote of a quorum of the state committee, if the vacancy occur in a nomination for an office to be filled by all the voters of the state, and otherwise by the members of the county committee or committees elected in the political subdivision in which such vacancy occurs at the official primary preceding the general election at which such vacancy is to be filled, or by such other committee as the rules and regulations of the party may provide.

Derivation: Added by L. 1911, ch. 891, and amended by L. 1913, ch. 820, in effect Dec. 17, 1913.

§ 92. Unofficial primaries.

Notice of all unofficial primary elections shall be given in the same manner as in the case of official primary elections, except that such notice shall be given by the proper party officers and shall not be at public expense. Unofficial primary elections shall be held. in such places within the unit of representation for which the primary election is held, as shall be designated by the proper political committee, but there shall be at least one polling place within and for each assembly district, ward or village. The chairman and

secretary of the political committee calling an unofficial primary election, or under whose direction such primary election is held, shall post and keep posted during the election, at or near the entrance to the room where the primary election is held, so that the same is clearly visible from the street, a conspicuous notice calling attention to the place at which the primary election is being held. Unofficial primary elections shall be held at the expense of the party holding them, and, except as herein otherwise provided, shall be subject to the rules and regulations of such party.

There shall be a chairman and secretary for each unofficial primary and there may be tellers. No person shall be entitled to vote at an unofficial primary unless he may be qualified to vote on the day of election.

The chairman may administer any oath required to be administered at any primary and he shall decide all questions that arise relating to the qualification of voters when a voter is challenged by any elector and shall reject such vote unless the person offering the vote is willing to be and shall be sworn that he will truly answer all questions put to him touching his qualifications as such voter and shall state under oath that he is qualified to vote at such primary.

The ballot box used at any primary shall be examined by the secretary and by the tellers, if any, in the presence of the watchers, if any, before any ballots are received, to see that there are no ballots therein. Such watchers are entitled to be present from the commencement of the primary to the close of the canvass and the signing of the certificates thereof. At the close of the canvass of the ballots cast for each candidate, the secretary shall publicly announce the vote and the result of the canvass.

No unofficial primary election shall be held in a saloon or drinking place, or in a room which is more than one flight of stairs from the street or not readily accessible from the street.

Derivation: Former § 50. § 53, in effect Nov. 15, 1911. § 4, pt. of subd. 5.

Renumbered and amended by L. 1911, ch. 891,
Originally revised from Primary Election Law,

Objection as to notice, when unavailable. The objection that it does not appear affirmatively that notice of a primary election was published as required at the Primary Election Law cannot be taken for the first time on a review of the determination of the board of elections as to the result, and particularly where the alleged defect was not specified in the petition for a review. Matter of Kennedy (1902), 36 Misc. 721, 74 N. Y. Supp. 369.