Are You Prepared for Possible Electronic Voting Machine Shortages?

This year, the presidential primary election will be held on April 26, 2020. A combined federal and state primary election day will be on the fourth Tuesday in June. For schools that are designated as polling places by their county board of elections, the date of the federal primary in particular may cause practical difficulties. The fourth Tuesday in June falls during Regent’s exam week, and many school districts use the same facilities for exams that are called upon by their county for use as polling places. Should this sort of practical conflict exist for a school, it may be possible to work with their county to find an alternate polling location.

A more immediate concern, however, is whether the presidential primary in late April, coupled with the federal and state primary in late June, will likely impact school districts’ ability to utilize county-owned electronic voting machines for the May 2020 school elections. Turnout for the presidential primary is anticipated to be high, and while early voting options may reduce voter turnout on the day of the primary, electronic voting machines will still be used by counties for the presidential primary. As school officials who have used electronic voting machines will know, electronic voting machines are subject to pre- and post-election sequestering. Pre-election sequestering occurs because there are specific steps that must be undertaken in order to prepare the machines for reading the ballots on Election Day, and in our experience, county boards of elections err on the side of caution to ensure that sufficient time is available to make machines ready for use. Post-election sequestering occurs in the event there is a challenge to the election results.

The May 2020 annual school district meeting and general election falls squarely between two important primary elections in 2020, and within the period of time that machines will need to be sequestered. Given the anticipated high voter turnout for these federal and state primaries, and the need to sequester machines, counties in New York State have already begun notifying schools that electronic machines may not be available for use by schools on the third Tuesday in May.

Many school districts enter into an agreement with their county in the fall or early winter for use of the county’s machines during the school district election in May. For schools that have already done so, those agreements should be reviewed to determine whether their county is able to rescind the agreement in the event electronic voting machines will not be available in May 2020. For school officials who anticipate using electronic voting machines, but who have not yet entered into an agreement with their county, an agreement should be put in place as soon as possible.

In general, school districts may wish to contact their county board of elections to verify that machines will be available for the school district election in May, and if so, how many machines will be available for each school district and polling location. Preliminary calls made by our office to various counties have indicated that many Central and North Country counties anticipate having machines available. However, some have indicated that they are not certain about being able to make machines available to schools in May. It may be that some counties that have preliminarily indicated that machines are available have not factored in the need to utilize and sequester machines for a presidential primary in April, and a federal and state primary in June.

In anticipation of possible electronic voting machine shortages, in the public notices for the school election, schools should carefully reference, or make no reference at all, to the manner in which the election will be conducted. It may not be known at the time the notice is initially published if voting machines will be used. There is no requirement under the Education Law to reference the manner in which the election will be conducted in the annual notice, although many districts include such a reference as a courtesy to voters. Additionally, schools anticipating a bond proposition on the ballot should make bond counsel aware that if electronic voting machines are not available, the election will be conducted by paper ballot. Please note that even if schools still retain the lever-style voting machines, you are no longer permitted to use them for school elections.

Schools that have relied upon electronic voting machines may suddenly find themselves needing to conduct an election by paper ballot in May 2020. While doing so may seem daunting, and an election by paper ballot does require different resources and additional time, it is possible to run an efficient and fair election by paper ballot. Our office has training and other resources available to assist a school district that may, for the first time, need to conduct its election by paper ballot.

If you have any questions, please contact Heather M. Cole, Esq. at hmcole@ferrarafirm.com or at one of the numbers listed below.