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MATTER THOMAS COLLINS ET AL. v. WILLIAM D. MEISSER ET AL. (06/06/68)

COURT OF APPEALS OF NEW YORK


decided: June 6, 1968.

IN THE MATTER OF THOMAS COLLINS ET AL., APPELLANTS,
v.
WILLIAM D. MEISSER ET AL., CONSTITUTING THE BOARD OF ELECTIONS OF THE COUNTY OF NASSAU, RESPONDENTS; IN THE MATTER OF MICHAEL N. PETITO ET AL., APPELLANTS, V. WILLIAM D. MEISSER ET AL., CONSTITUTING THE BOARD OF ELECTIONS OF THE COUNTY OF NASSAU, RESPONDENTS

Matter of Collins v. Meisser, 30 A.D.2d 669, reversed. Matter of Petito v. Meisser, 30 A.D.2d 669, reversed.

Chief Judge Fuld and Judges Scileppi, Bergan, Keating, Breitel and Jasen concur; Judge Burke taking no part.

 Memorandum. The order in each case should be reversed, without costs, and the proceeding remanded to the Supreme Court for further proceedings in accordance with this memorandum. Where two or more persons are to be nominated for the same public office or to a party position at a primary election, any person so designated may require the appropriate election officials to determine by lot "the order in which shall be printed on the official primary ballot" their names as candidates (Election Law, ยง 104, subd. 2). Where the same designating petition contains groups of more than one person as nominees for the same office, position on the ballot may be determined by lot for the groups.

Petitioners in both proceedings include groups of candidates for delegates to the Democratic National Convention in certain congressional districts in Nassau County. In the first proceeding (Collins) the petitioners also include designees for separate offices, including District Attorney and congressional representative. All petitioners requested the Nassau Board of Elections that their positions on the voting machines to be used in the June 18 primary election be chosen by lot. The board refused this request and assigned the candidates to positions on the lines following the names of candidates for the United States senatorial nomination who, the board believed, represented political views harmonious with those of the respective groups of delegates and other candidates.

Although this was done in good faith, and with a sense of fairness, the right of the petitioners to request that their positions on the machine be fixed by lot, as provided by statute, could not be denied under the facts of this record (Matter of Dent v. Power, 1 N.Y.2d 825; Matter of Rachlin v. Lomenzo, 17 N.Y.2d 926; Matter of Tomczak v. Lawley, 17 N.Y.2d 928).

In each proceeding: Order reversed, without costs, and matter remitted to Special Term for further proceedings in accordance with the memorandum herein.

Disposition

In each proceeding: Order reversed, without costs, and matter remitted to Special Term for further proceedings in accordance with the memorandum herein.

19680606

© 1998 VersusLaw Inc.



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