
    In the Matter of Andrew V. Ippolito, Respondent, v. James M. Power et al., Constituting the Board of Elections of the City of New York, Respondents, and Edmund J. Wilowski, Appellant.
    Argued September 25, 1968;
    decided September 27, 1968.
    
      
      Bernard A. Helfat and Morris Fierson for appellant.
    I. The errors or discrepancies claimed by petitioner-respondent do not constitute irregularities such as would compel a new election. II. Not a single invalid vote was conceded by respondent-appellant. III. The case of Matter of Nodar v. Power (18 N Y 2d 697) is not controlling in the instant case. (Matter of Acevedo v. Power, 18 N Y 2d 700; Matter of Badillo v. Santangelo, 15 A D 2d 341; Matter of O’Connor v. Power, 18 N Y 2d 705.) IV. Burden of proof at all times rests upon petitioner who apparently has not borne that burden. V. The overage on the public counter does not necessarily indicate invalid votes.
    
      Stanley Posess for Andrew V. Ippolito, respondent.
    I. The record supports the decision of Special Term granting a new election. (Matter of DeSapio v. Koch, 21 A D 2d 20,14 N Y 2d 735; Matter of Nodar v. Power, 26 A D 2d 785, 18 N Y 2d 697; Matter of McGuinness v. DeSapio, 9 A D 2d 65, 7 N Y 2d 708.) II. Respondent Ippolito met his burden of proof under section 330 (subd. 2) of the Election Law. (Noce v. Kaufman, 2 N Y 2d 347.) III. Aside from its support in the record Special Term’s decision is legally correct. (Matter of Badillo v. Santangelo, 15 A D 2d 341.)
   Breitel, J.

The successful candidate for District Leader (Male) Part B of the 22nd Assembly District, Democratic party, in the County of Queens, appeals from an order directing a new primary election in a proceeding brought by the unsuccessful candidate under section 330 of the Election Law. Special Term, after a hearing, granted such order, and the Appellate Division affirmed by a divided vote.

The statute provides that the court may direct a new election where it “ has been characterized by such frauds or irregularities as to render impossible a determination as to who rightfully was * * * elected” (Election Law, § 330, subd. 2). This is the statutory standard and it is stated in the alternative, namely, that frauds or irregularities may ground a court’s discretion in directing a new election.

In the instant primary a total vote of 2,827 was cast, 1,422 for the winner and 1,405 for the loser. Thus the winning margin was a mere 17 votes. Coneededly 101 possible votes in the aggregate number were suspect or invalid for some kind of irregularity without any evidence of fraud or intentional misconduct. According to the public counter on the machine, there were 68 more votes cast than there were qualified persons who signed the voter registration (buff) cards. To be sure, it may be that the public counter did not register actual votes but only openings and closings of the automatic voting machines. In any event, such excessive operations were as unlawful as if actual excess votes were cast, and are significant because of the impossibility of knowing, in the absence of positive evidence, whether that is all that happened when the machines were opened and closed. There were 19 suspect or invalid votes because of blank, void, or missing party enrollments, 7 voter registration cards that were not signed, one irregular card, and 6 signings-in by members of the Conservative party although there was no contested Conservative primary. These make up the total of 101 suspect or invalid votes.

It is evident that even a small portion of the suspect votes could undo the slight margin of the victor and change defeat into victory for the loser. Hence, the statutory standard is met precisely, justifying the lower court’s exercise of discretion in directing a new primary election. On almost identical facts, this court affirmed a similar direction (Matter of Nodar v. Power, 18 N Y 2d 697). In the Nodar case, 1,417 votes were cast for the contested position, 722 for the victor and 695 for the loser. There were 109 invalid or suspect votes, consisting of votes by 80 persons who were not enrolled and who signed in, and 29 excess operations of the machiné according to the public counter. There, a victory margin of 27, when weighed against 109 irregular votes, was sufficient to require a new election without evidence of fraud or other intentional misconduct. Matter of Acevedo v. Power (18 N Y 2d 700) and Matter of O’Connor v. Power (18 N Y 2d 705), decided the same day as the Nodar case, reached an opposite conclusion. These were affirmances of exercises of discretion by the lower courts in declining to direct new elections, and were supported by entirely different probabilities. In the Acevedo case, there were 103 suspect votes against a victory margin of 95, and, in the other, some 262 suspect votes, of which Special Term refused to invalidate 102, leaving 160 against a victory margin of 165 votes. Obviously, a change in the result would require that the bulk of the questioned votes be shifted to the loser, a gross improbability, or even impossibility, before it could be inferred that the irregularities were influential (see Matter of Badillo v. Santangelo, 15 A D 2d 341).

There evolves from these cases a rational standard: 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. As stated in the Badillo case (supra) “ An election will not be overturned upon a mere mathematical possibility that the results could have been changed, when the probabilities all combine to repel any such conclusion ” (p. 342); but in cases like the one now before the court, as in the Nodar case (supra), it does not strain the probabilities to assume a likelihood that the questioned votes produced or could produce a change in the result.

While it is troubling to require new election for irregularities without evidence of fraud or other intentional misconduct, ignoring such irregularities would undoubtedly create the likelihood that skillfully manipulated 1 ‘ irregularities ’ ’ would be used to mask corrupt practices. It is better to keep the standards high, even at the cost of penalizing some voters and candidates for the failures of election inspectors, than to increase the opportunities for fraud without possibility or likelihood of discovery. And the statute is explicit in directing that irregularities, as well as fraud, may justify the direction of a new election.

In Matter of Straus v. Power (22 N Y 2d 886), decided September 26, 1968, the significant circumstance warranting a different result is that the respondent successful candidate in that case submitted proof, explaining discrepancies inter alia through the testimony of registered voters who testified to signing in but not voting in the contested primary. Thus the likelihood of the irregularities influencing the result in the election was substantially reduced. Moreover, the margin of victory was much greater than in this case. For all these reasons the lower courts in the Straus case acted entirely within their proper discretion.

In Matter of Jacobowitz v. Power (22 N Y 2d 899) and the two appeals consolidated with it, decided herewith, a different result is also indicated. In these cases, against a plurality of 157 for the victor there were irregularities found below in the amount of 272. However, 60 of those irregularities involved an excess of voters who signed in as against the vote tallied by the public counter. Since there are so many plausible explanations why voters who signed in may not have voted, this discrepancy is without significance. In addition, there were some 40 excess votes cast in the Liberal party primary. It is difficult to see, and respondents offer no logical or persuasive support, why this excess should be attributed to any candidate in the Democratic primary. Deducting these 100 votes from the discrepancy of 272 leaves a net discrepancy of only 172, against the plurality of 157. The case then falls within the bounds of the Acevedo and Badillo cases (supra).

On the other hand, in Matter of Mack v. Cocuzzo (22 N Y 2d 901), decided herewith, there was a plurality of 74 votes for the victor and a total of 232 suspect votes. This falls easily within the range of the Nodar case (supra), this case, and the earlier case of Matter of DeSapio v. Koch (14 N Y 2d 735). Moreover, there was the added circumstance that, in at least two of the election districts, the names of the proper candidates in the Democratic primary did not appear on the machines. With a logic that is difficult to fathom, the miscast votes in these two districts were allotted among the candidates whose names should have appeared on the machines.

Accordingly, the order directing a new election should be affirmed.

Dissenting memorandum.

In this special proceeding, initiated pursuant to section 330 (subd. 2) of the-Election Law, petitioner-respondent requests that we affirm an order of the Appellate Division, Second Department, authorizing a new primary election for the position of Democratic Assembly District Leader — (Male) for Part B of the 22nd Assembly District. The majority of this court is disposed toward granting this request concluding that the initial election was marked by ‘ ‘ such frauds or irregularities as to render impossible a determination as to who rightfully was nominated or elected ’ ’.

Before considering the “ specifics ” relied upon by the majority, we would first comment on the setting in which the initial election was held. This year, for the first time, primaries were conducted State-wide. Accordingly, more voting machines were required. To meet this demand, a plan was initiated whereby the primary could be conducted without providing each political party a separate voting machine in each polling place. Instead, it was decided that the space on the individual machines could be split by the different political parties. To do this, it was first necessary that the machines be divided according to the parties, and that levers be installed which would limit a particular voter’s choice to those persons on the machine who were aspirants for office in his own political party. Finally, to insure that each person was properly limited to voting for his party’s candidates, each voter, after registering, was given a card of a distinctive color corresponding to the color ascribed to his party. Those persons operating the machines were thus informed of the voter’s registration and would set the machine accordingly. The uniqueness of this procedure is apparent. It is equally obvious that such a plan, when used for the first time and because it encompassed more steps than the standard primary procedure, would produce more mechanical and human errors than are usually associated with elections. Discrepancies alone, therefore, between various cross references of figures are more likely to occur and, in light of all the claims asserted both in this court and the lower courts of this State pertaining to this primary election, it would indeed be suspicious for any district or area to report a totally unimpeachable result.

We do not agree with the majority that, to the extent the ‘ ‘ irregularities ’ ’ were attributed to the excess in the machine count over the number of signed cards, there is a basis for invalidating the difference. Even where there is an excess machine count in a case where machines were used for more than one party, it is pure speculation to assume without any testimony that there were repeaters. (See Matter of Straus v. Power, 22 N Y 2d 886, decided Sept. 26, 1968.) It is well settled that the results of an election are entitled to a presumption of regularity and that a party attempting to impeach these results carries the burden of proof. In Matter of Nodar v. Power (18 N Y 2d 697) there were 1,417 votes cast as against 2,827 in this case. Hence the percentage of irregularities here is 50% less than in Matter of Nodar (supra) which is, therefore, inapplicable.

An inexplicable inference, advanced by petitioner and accepted by the majority, arises from the Conservative vote in the district. The record, before us indicates that there was no contested Conservative primary. From this evidence alone, the majority has concluded that Conservatives voted in the Democratic party. Proof of such a contention should lie, if at all, in the figures for registration and poll count amongst Democrats in the same district. Thus, if petitioner established that more Democratic votes were cast than could have been cast because of the Conservative registrants, there would indeed be a basis for this contention. Such evidence, however, does not exist. In fact, no testimonial evidence has been presented to support any allegation.

We conclude that there is no basis for sustaining the invalidation on the basis of “missing Party enrollments ” and Conservative registrants. “ An election will not be overturned upon a mere mathematical possibility that the results could have been changed ’ ’ (Matter of Badillo v. Santangelo, 15 A D 2d 341, 342). In that case, the court, noting that the two candidates had each received approximately 50% of the vote as here and that not all those participating in the election chose to cast a ballot in their particular contest, concluded that there was no reason to assume that these invalidated votes had any impact on the election’s outcome. This principle has been recognized by this court many times. (See, e.g., Matter of Acevedo v. Power, 18 N Y 2d 700.)

It is evident that all these “irregularities” were in fact attributable to mechanical and human error. As the burden of establishing the adverse effect on him of the ‘ ‘ irregularities ’ ’ rests on the petitioner, it is inconsistent with the prevailing conditions at this primary as compared with the primary held in Matter of Nodar (supra) to refuse to dismiss the petition in this case as we did in Matter of Acevedo v. Power (supra) where the vote cast was equivalent to the vote cast here.

The order of the Appellate Division should be reversed and the petition dismissed.

Chief Judge Fuld and Judges Keating and Jasen concur with Judge Bkeitel ; Judges Burke, Scileppi and Bergan dissent and vote to reverse and dismiss the petition in a memorandum.

Order affirmed, without costs.  