Can absentee ballots be used in a New York election on whether to incorporate a new village?

Plain-English summary

The Town of Nassau's attorney asked the AG whether absentee ballots could be used in an upcoming election on whether to incorporate a new village within the town. A 1967 AG opinion had said no, but the Town wanted the answer revisited. The AG reached the same conclusion in 2006.

Article 2 of the Village Law lays out the procedure for incorporating a village: a petition signed by either 20% of qualified voters in the proposed territory or owners of more than 50% of the assessed property; a town supervisor's hearing on the petition's sufficiency; and, if the petition passes, an election within 40 days. The election is run by the town clerk and town supervisor, who serve as the board of inspectors. Article 2 says the election should be conducted "pursuant to the election law" (§ 2-212(1)(c)) and that "provisions of the election law not inconsistent" with article 2's procedures "shall apply to such election so far as the same are practicable" (§ 2-220(5)).

The question was whether those general references to the Election Law sweep in Election Law § 8-400, which authorizes absentee voting "in any village election conducted by the board of elections, primary election, special election, general election or New York city community school board district or city of Buffalo school district election."

The AG concluded they do not. Election Law § 8-400 by its own terms applies only to elections "under this chapter," and incorporation elections run under the Village Law instead. The Election Law as a whole does not directly apply: § 1-102 covers elections at which voters cast ballots for candidates, party positions, or ballot questions at the time of a general election, but Village Law § 2-214 specifically prohibits holding an incorporation election at the time of a general election.

The AG relied on a clear pattern in New York law: when the Legislature wants to authorize absentee voting in a particular type of election, it says so directly. Town Law § 84-a(1), § 175-b(1), and § 213-b(1) all authorize absentee ballots in specific kinds of local elections with explicit language. Education Law § 1803 and § 2613 do the same for certain school district elections, with cross-references to specific Election Law sections. The absence of comparable specific language in Village Law article 2 indicates the Legislature did not authorize absentee voting in incorporation elections.

A prior court decision supported this reading. In Matter of Savage v. Board of Education, 29 Misc. 2d 725 (Sup. Ct. 1961), the court held that Education Law § 2609, which directed that school board elections be conducted "so far as may be, in accordance with the provisions of the election law," did not authorize absentee voting. A prior AG opinion, 83-6, said the same thing about a similar general reference in Town Law § 83 governing special town elections.

The AG noted the practical consequence: voters who cannot be present on election day cannot participate in an incorporation election. That is an issue for the Legislature to address. As of 2006, the AG could not read the general Election Law references in Village Law article 2 as authority for absentee voting.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why does a village-incorporation election need its own absentee rules?
A: Different elections in New York run under different statutory frameworks. General elections, school district elections, and fire district elections each have their own rules about who runs them, who can vote, and whether absentee ballots are allowed. Incorporation elections run under the Village Law, which has its own set of procedures. So the AG examined the Village Law to see whether absentee voting fits into that specific framework.

Q: Doesn't the New York Constitution require absentee voting?
A: Article II, § 2 of the New York Constitution gives the Legislature authority to provide for absentee voting; it does not require it in every election. The Legislature has to enact specific authorization for each type of election where absentee ballots are allowed.

Q: Why didn't the general reference to the Election Law work?
A: Courts and the AG have read general references like "conducted in accordance with the election law" as importing the Election Law's procedures for running an election (opening polls, counting votes), not as creating substantive voting rights such as absentee voting. Absentee voting expands who is eligible to vote and how their votes are cast, so it requires specific authorization rather than a general procedural reference.

Q: Can the Legislature change this?
A: Yes. If the Legislature wanted to allow absentee voting in village-incorporation elections, it could amend Village Law article 2 to say so directly, in language modeled on the other statutes that explicitly authorize absentee ballots for particular elections.

Q: How did the AG's reasoning fit with the 1967 opinion?
A: The 1967 AG opinion (1967 Op. Att'y Gen. (Inf.) 115) reached the same conclusion, holding that the Village Law's general references to the Election Law were not enough. The 2006 opinion confirmed that reasoning forty years later. The 1964 and 1972 statutory revisions that added the current general references to the Election Law (§§ 2-220(5) and 2-212(1)(c)) most likely contemplated the procedural Article 8 provisions in effect at the time (preparations for opening the polls, division of labor among election inspectors), not the absentee-ballot provisions which were in Article 5 at that time.

Background and statutory framework

A New York village can be incorporated from territory within a town, provided the territory has a population of at least 500, does not include parts of an existing city or village, and satisfies other area requirements. The process under Village Law article 2 has four main stages.

First, the petition. The proceeding begins when residents or property owners circulate a petition. The petition must be signed either by at least 20% of residents qualified to vote for town officers, or by owners of more than 50% of the assessed valuation of the property in the proposed village. Village Law § 2-202(1)(a). The signed petition is filed with the town supervisor. § 2-202(1)(f)(1).

Second, the hearing. Within 20 days of the filing, the town supervisor posts and publishes notice of a hearing. § 2-204. The supervisor conducts the hearing to determine the petition's sufficiency and issues a decision. §§ 2-206, 2-208. Town residents may bring an Article 78 proceeding to challenge the decision. § 2-210.

Third, the election. If the petition is sustained (or if not challenged within 30 days), an election is scheduled within 40 days. § 2-212. Any resident eligible to vote for town officers may vote on the incorporation question. § 2-216. The town clerk and town supervisor conduct the election as the board of inspectors. § 2-220(3), (4). Village Law § 2-214 specifically requires the incorporation election to be held on a date other than the date of a general election.

Fourth, the result. If a majority votes in favor, the proposed village is incorporated. § 2-222(1). Judicial review of the election is available under § 2-224.

The relevant absentee-voting authorities are Election Law § 8-400(1) (absentee voting "under this chapter" in any village election conducted by the board of elections, primary, special, general, or certain school district elections) and Election Law § 15-120 (a qualified elector "may vote as an absentee voter ... [in] a general or special village election"). Neither directly reaches an incorporation election conducted under the Village Law.

Citations and references

Statutes:

• Village Law §§ 2-200, 2-202, 2-204, 2-206, 2-208, 2-210, 2-212, 2-212(1)(c), 2-214, 2-216, 2-220, 2-220(5), 2-222, 2-224 (village incorporation framework)
• Election Law § 1-102 (scope of Election Law)
• Election Law § 8-400(1) (absentee voting)
• Election Law § 15-120 (absentee voting in village elections)
• Town Law §§ 83, 84-a(1), 175-b(1), 213-b(1) (express absentee-voting authorizations)
• Education Law §§ 1803, 2018-a, 2018-b, 2609, 2613 (school district absentee voting)
• N.Y. Const. art. II, § 2 (legislative authority for absentee voting)

Cases:

• Matter of Savage v. Board of Education, 29 Misc. 2d 725 (Sup. Ct. 1961)

Prior AG opinions:

• 1967 Op. Att'y Gen. (Inf.) 115 (same conclusion under the predecessor statutes)
• Op. Att'y Gen. (Inf.) No. 83-6 (general Election Law reference in Town Law § 83 did not authorize absentee voting)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2006-1_pw.pdf

Original opinion text

ELECTION LAW §§ 8-400(1), 15-120; EDUCATION LAW §§ 1803, 2018-a, b, 2609, 2613; TOWN LAW §§ 83, 84-a(1), 175-b(1), 213-b(1); VILLAGE LAW §§ 2-200, 2-202(1)(a), 2-200(1)(f)(1), 2-204, 2-206, 2-208, 2-210, 2-212, 2-212(1)(c), 2-214, 2-216, 2-220, 2-220(3), (4), (5), 2-222, 2-222(1), 2-224.

Article 2 of the Village Law does not authorize absentee voting in an election to determine the question of incorporation.

January 23, 2006

Joseph M. Catalano
Town Attorney
Town of Nassau
P.O. Box 219
Rensselaer, New York 12144

Informal Opinion
No. 2006-1

Mark Greenberg
Town Attorney
Town of Nassau
4 East Center Street
Hudson, New York 12534

Dear Mr. Catalano and Mr. Greenberg:

Your predecessor requested an opinion regarding whether the use of absentee ballots is authorized in an election held on the question of incorporating a new village. He explained that a petition had been submitted for the incorporation of a new village and that the Town therefore may be conducting an election to determine whether the proposed village will be incorporated. He recognized that this Office has previously opined that absentee voting is not authorized in an election to determine the question of incorporation, see 1967 Op. Att'y Gen. (Inf.) 115, but because of the time that has passed since we rendered that opinion, he asked that we consider the question again. As explained more fully below, we are of the opinion that article 2 of the Village Law does not authorize absentee voting in an election to determine the question of incorporation.

I. Background

The procedure by which a village may be incorporated from territory within a town is prescribed by article 2 of the Village Law. A territory with a population of at least 500 may be incorporated as a village as long as the territory does not include part of a pre-existing city or village and meets other area requirements. Village Law § 2-200. A proceeding for the incorporation of a village begins with the circulation of a petition, which must be signed by either (or both) (1) at least 20% of the residents of the territory proposed to incorporate who are qualified to vote for town officers or (2) the owners of more than 50% in assessed valuation of the real property in the territory of the proposed village assessed upon the last completed assessment roll of the town in which the territory is located. Id. § 2-202(1)(a). The signed petition must then be filed with the supervisor of the town within which the territory proposed to be incorporated as a village is located. Id. § 2-202(1)(f)(1).

Within 20 days of the filing of the petition, the town supervisor must have posted and published in the newspaper designated by the town as its official newspaper notice of a hearing to be held on the petition. Id. § 2-204. The town supervisor conducts the hearing to determine the sufficiency of the petition, and subsequently makes a decision thereon. Id. §§ 2-206, 2-208. A town resident may institute an article 78 proceeding to subject the supervisor's decision to judicial review. Id. § 2-210. Upon a determination sustaining the sufficiency of the petition, or if the petition is not challenged within 30 days of the supervisor's decision, an election to determine the question of incorporation will be scheduled to be held within 40 days. Id. § 2-212.

Any resident within the territory proposed to incorporate who is eligible to vote for town officers is eligible to vote in the election on the incorporation question. Id. § 2-216. The election is conducted by the town clerk and the town supervisor. Id. § 2-220(3). Comprising the board of inspectors of election, they possess all the powers conferred by law upon a board of inspectors of election at a town election. Id. § 2-220(3), (4). They are responsible for the canvass of election when the polls are closed. Id. § 2-222. If a majority of the voters within the territory vote for incorporation, then the proposed village will be incorporated. Id. § 2-222(1).

II. Analysis

Section 2 of article 2 of the New York Constitution grants the Legislature the authority, "by general law, [to] provide a manner in which, and the time and place at which, qualified voters who, on the occurrence of any election, may be absent from the county of their residence . . . and qualified voters who, on the occurrence of any election, may be unable to appear personally at the polling place because of illness or physical disability, may vote and for the return and canvass of their votes."

Article 8 of the Election Law, titled "Conduct of Elections," authorizes absentee voting under the Election Law in "any village election conducted by the board of elections, primary election, special election, general election or New York city community school board district or city of Buffalo school district election." Election Law § 8-400(1). Election Law § 8-400 is not directly applicable to the incorporation election, however, because the voting occurs under the authority of the Village Law rather than the Election Law. Id. ("A qualified voter may vote as an absentee voter under this chapter . . . ."). Indeed, the Election Law as a whole does not directly apply to an election on the incorporation question: Section 1-102 of the Election Law provides that "[the Election Law] shall govern the conduct of all elections at which voters of the state of New York may cast a ballot for the purpose of electing an individual to any party position or nominating or electing an individual to any federal, state, county, city, town or village office, or deciding any ballot question submitted to all the voters of the state or the voters of any county or city, or deciding any ballot question submitted to the voters of any town or village at the time of a general election."

While an incorporation election might be considered a "ballot question submitted to the voters of a town," id., article 2 of the Village Law clearly prevents an incorporation election from being held at the time of a general election, Village Law § 2-214. Therefore, the Election Law does not directly authorize the use of absentee ballots in an incorporation election.

Article 2 of the Village Law does not specifically authorize absentee ballots. Article 2 does, however, contain two references to the Election Law: section 2-212(1)(c) provides that the "procedure for conducting [the election to determine the question of incorporation] shall be pursuant to the election law," and section 2-220(5) directs that the "provisions of the election law not inconsistent [with the remainder of section 2-220 regarding the conduct of the election] shall apply to such election so far as the same are practicable." The question thus is whether these references in article 2 of the Village Law to the Election Law are sufficient to authorize absentee voting in the election to determine the question of incorporation. We believe that they are not.

A general reference to the Election Law for the conduct of school board elections similar to those contained in article 2 of the Village Law has been held insufficient to authorize absentee voting. See Matter of Savage v. Board of Education, 29 Misc. 2d 725 (Sup. Ct. 1961) (Education Law § 2609, providing that school board elections be conducted "so far as may be, in accordance with the provisions of the election law" did not authorize absentee voting). Similarly, we have previously concluded that a general reference to the Election Law is insufficient to show the Legislature's intent to authorize absentee voting. Op. Att'y Gen. (Inf.) No. 83-6 (language in Town Law § 83 that special elections "shall be conducted, the votes canvassed, and the results certified and returned so far as practicable in the manner prescribed by [the Election Law]" was not incorporation of authority of Election Law § 8-400 regarding absentee voting).

Our conclusion that absentee voting is not authorized in an incorporation election is supported by the fact that the Legislature has repeatedly expressed its intent to authorize absentee voting in particular types of elections using direct and specific language. See, e.g., Town Law § 84-a(1) ("Absentee ballots shall be provided for all special town elections for which personal registration is required"); id. § 175-b(1) ("The board of fire commissioners of any fire district in which officers are elected, may, by resolution, provide for absentee ballots for fire district elections, in accordance with the provisions of this section"); id. § 213-b(1) ("The board of commissioners of any improvement district in which commissioners are elected, may, by resolution, provide for absentee ballots for the election of the commission, in accordance with the provisions of this section"); Election Law § 15-120 ("A qualified elector of a village may vote as an absentee voter . . . [in] a general or special village election . . . ."); id. § 8-400(1) ("A qualified voter may vote as an absentee voter . . . [in] any village election conducted by the board of elections, primary election, special election, general election or New York city community school board district or city of Buffalo school district election . . . ."). Even where the Legislature has referred to another statute to provide the procedure for using absentee ballots, the authority to use absentee ballots in a particular type of election has been express. See, e.g., Education Law § 1803 (absentee ballots required at certain central school district meetings, to be used according to Education Law §§ 2018-a or 2018-b); id. § 2613 (absentee ballots required at certain small city school district elections in accordance with Education Law § 2018-a). The lack of such express language in article 2 of the Village Law, when compared to the explicit language in other provisions, indicates that absentee voting is not authorized in an incorporation election.

We see no reason to read the general references to the Election Law in article 2 of the Village Law as authority for absentee voting in an incorporation election when the Legislature has spoken clearly and directly with respect to absentee voting in many other contexts. In the absence of specific authority to conduct absentee voting in Village Law article 2, and consistent with our conclusion in 1967 Op. Att'y Gen. (Inf.) 115, we are of the opinion that it is not authorized in an incorporation election conducted pursuant to article 2. We recognize that the inability to use absentee ballots in an incorporation election may adversely affect those who will not be present; that, however, is an issue that must be addressed by the Legislature.

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