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Lynn K. Neuner and William T. Russell Jr. Lynn K. Neuner and William T. Russell Jr.

In In the Matter of Kosmider v. Whitney, the Court of Appeals ruled that scanned images of paper election ballots are protected from disclosure in response to a FOIL request. The majority determined that there is no basis to distinguish between the scanned images and the paper ballots themselves under Election Law §3-222, which restricts the disclosure of ballots for the two years after an election. A two-judge dissent disagreed and argued that, while the paper ballots are immune from disclosure under §3-222, that protection does not extend to the scanned images. While reaching opposite conclusions, both the majority and the dissent rely on the plain text of the Election Law and the public policy of preserving the sanctity of the election process.

Election Law §3-222 is part of a legislative scheme governing the preservation and safeguarding of information contained in election ballots. Its current enactment reflects the fact that voting in New York is now performed through electronic voting machines that require voters to mark a paper ballot by hand. The paper ballot is then scanned by the voting machine and automatically deposited into a secure box. The voting machine also stores an image of the ballot on two removable memory cards. One card remains with the machine, and the other card is sent to the applicable board of elections where its contents are preserved by transfer to more permanent electronic storage media.

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