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MATTER OF WOLF v. ACITO

42 N.Y.2d 1076 (1977)

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.

Court of Appeals of the State of New York.

Decided October 17, 1977.

Attorney(s) appearing for the Case

Richard Boccio for Frank J. Boccio, 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.

Chief Judge BREITEL and Judges GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum; Judge JASEN taking no part.

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....

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