Wolf v. Acito — 42 N.Y.2d 1076

Majority

p. 1076

In the Matter of Norman J. Wolf, Jr., Respondent, v Remo Acito et al., Constituting the State Board of Elections, Respondents, and Frank J. Boccio et al., Appellants.

Argued Ocotber 14, 1977;

decided October 17, 1977

p. 1077

Richard Boecio for Frank J. Boecio, appellant.

Cornelius J. Kelleher, Jr., for Richard A. Grimm, Jr., appellant.

John Tabner for Norman J. Wolf, Jr., respondent.

James B. Cantwell and Thomas P. Zolezzi for New York State Board of Elections, respondent.

Memorandum. We conclude that the State Board of Elections acted erroneously in the manner of conducting the drawing requested by petitioner because, in the nature of the drawing chosen, petitioner bore an unequal risk of obtaining an unfavorable position of the ballot. The board, of course, had to take into account the mechanical limitations of the voting machine, and hence could not place petitioner’s name in column 2. At least Special Term’s method proposed no unfair weighting on any of the candidates. While we agree with the Appellate Division’s conclusion that the State board did not follow the directive of section 104 of the Election Law,

p. 1078

we do not regard it as practically desirable that a new lottery should be conducted.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the judgment of Supreme Court, Albany County, reinstated.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum; Judge Jasen taking no part.

Order reversed, etc.