33 A.D.2d 517 | N.Y. App. Div. | 1969
In a proceeding pursuant to subdivision 2 of section 330 of the Election Law to declare void the primary election held June 17, 1969 and to direct the holding of a new primary election of the Democratic Party for the office of Borough President of the Borough of Queens, the appeal is from a judgment of the Supreme Court, Queens County, dated August 22, 1969, which granted the application and directed a special election to be held on September 16, 1969. Judgment modified to provide that the special election be held September 30, 1969. As so modified, judgment affirmed, without costs, with the following memorandum: When the number of voters participating in an election is large, there will always be some irregularities. Nevertheless, it is fundamental to the democratic process and to our republican form of government that no suspicion attach to the results of any election. This policy is the foundation of the “ rational standard ” evolved in Matter of Ippolito v. Power (22 N Y 2d 594, 597-598) that “ if irregularities are sufficiently large in number to establish the probability that the result would be changed by a shift in, or invalidation of, the questioned votes, there should be a new election ”. The balancing of the factors affecting that probability must be, of course, determined by the exercise of a fair discretion. In the present case the number of irregularities far exceeds the margin of victory of the successful candidate. There are distinguishing features here from Ippolito, but they do not influence the application of the rule or the policy that is its underpinning. The fact that more persons voted in the election here than in Ippolito should not alter the rule; otherwise, whether a new election should be held would be decided by an arbitrary mechanical test of the size of the vote cast and not by the rational formula of whether the probabilities are that the result would be different, but for the irregularities. Nor should the rule be shifted because four candidates, rather than two candidates (as ■in Ippolito), were running in the election. In either situation, the margin of defeat lies in the balance, which the irregularities, if corrected, could affect in the ultimate outcome. Finally, that here the contest took place at the same time as a city-wide primary of national interest, rather than in a local primary, should not be weighted heavily against a new election, for, plainly, this is a circumstance which might arise in many eases, and does not affect the Ippolito rule and policy. Accordingly, we affirm the exercise of discretion by Special Term. 'Christ, Brennan and Hopkins, JJ,, concur; Beldoek, P. J., and