Appellate Court dismisses challenge by counties, including Orleans, with weighted voting for WROTB

Municipalities used to each have equal vote, but weighted system diminishes clout of smaller members

ALBION – The first 50 years of Western Regional Off-Track Betting Corp., each member county or city had the same vote per municipality, regardless of the population.

But about two years ago, the OTB board changed to a weighted-voting system with more populous areas getting more votes. Orleans, instead of an equal seat at the table, ended up with the least power.

Orleans and five other counties sued over the changes. The State Supreme Court, Appellate Division, on Wednesday dismissed the case.

Orleans was joined in the lawsuit by Genesee, Niagara, Livingston, Wyoming and Seneca counties. The case was initially filed and argued in Orleans County.

The State Legislature and Gov. Kathy Hochul approved the weighted voting changes with the state budget in 2023-24, citing improprieties and mismanagement at the WROTB.

The six counties that sued said the change violated the “one county, one vote” model of WROTB with a population-based model that effectively consolidates the power to manage and operate the WROTB in Erie County, Monroe County, the City of Buffalo, and the city of Rochester. Those four members have 62 of 99 votes in the weighted system.

The weighted vote system includes the following votes: Erie County, 24; Monroe County, 20; City of Buffalo, 10; City of Rochester and Niagara County, 8; Chautauqua, 5; Oswego, 4; Steuben, Wayne, Cattaraugus and Cayuga, 3; Livingston and Genesee, 2; and Wyoming, Orleans, Seneca and Schuyler, 1.

The Appellate Division sided with the State of New York, which asserted that the six counties lacked capacity to bring a suit to invalidate state legislation. The Appellate Court said the changes in the weighted voting doesn’t affect the revenue that will go to the smaller counties.

The court noted that WROTB’s funds vary by year, depending on the wagers placed and WROTB’s operating expenses. Those funds are not in immediate possession of the member municipalities, but are distributed regularly at intervals determined by the board.

Orleans and the other counties in the lawsuit were represented by former attorney general Dennis Vacco, now with Lippes Mathias LLP. In a March 27, 2024 court appearance in Orleans County before State Supreme Court Judge Frank Caruso, Vacco said the case is a very important challenge, showing smaller rural counties standing up to a “power grab” imposed by the state.

“I’m a little emotional about it because I think they receive these types of shenanigans from Albany all the time,” Vacco told the judge in court that day.

The municipalities in WROTB fronted the money to start WROTB in 1973, which has returned more than $250 million in profits to the municipalities.

Joe Terragnoli, representing the Attorney General’s Office, appeared in court on March 27, 2024.

“It’s been a very lucrative deal,” he told the judge. “They gave loans and they were paid in full.”

That contribution never guaranteed an equal vote for perpetuity. The money didn’t purchase voting rights, Terragnoli said.

The state has the right to restructure the board with a weighted vote, he said.

Vacco said the smaller counties never would have put up the money if they had such a small voice at the board table.