Klein v. Power , 167 N.Y.S.2d 854 ( 1957 )

Arthur G. Klein, J.

This is a proceeding for an order pursuant to sections 330 (subd. 3), 242 and 242-a of the Election Law, or, in the alternative, under article 78 of the Civil Practice Act, to compel the Board of Elections to provide for the use of voting machines in the primary election to be held on September 10, 1957. Section 242-a of the Election Law has conferred discretionary power on the board to adopt the use of voting machines at primary elections. The pertinent portion of subdivision 1 of section 242-a reads as follows: “The board of elections of the city of New York * * * may [italics mine] adopt the use of voting machines for any primary election ”.

Petitioner argues that the word “may” means “must”. If the Legislature intended to make it mandatory for the Board of Elections to install voting machines, it should have so stated. Section 242 of the Election Law, which authorized the use of election machines in general elections, states as follows: ‘ ‘ The board of elections of the city of New York * * * shall [italics mine] * * * adopt for use at any general election any kind of voting machine The wording of the amendment to section 242-a, which authorized voting machines in primary elections, is merely permissive, and not mandatory, as provided in the section dealing with general elections. In the absence, therefore, of an abuse of discretion on the part of the Board of Elections, this court cannot compel said board to install such machines in the coming primary elections. The petitioner has not established that the failure to provide them has, or will, endanger the rights of any citizen or voter. The present budgetary situation must also be taken into consideration in determining whether the action taken was arbitrary or capricious.

The application is denied and the proceeding is dismissed.