A lawsuit that challenged the placement of a referendum for a constitutional convention has been tossed by a state judge.

Evan Davis, a former counsel to Gov. Mario Cuomo who filed the suit, said in a statement he plans to appeal the decision.

Davis had filed suit against the state Board of Elections to require the question over whether to hold the convention on the front of the ballot. A supporter of the convention, Davis is challenging the ballot placement given it’s the first time in recent political history the once every 20 year referendum is being put to voters on paper, not lever machines.

“I am disappointed that the Court has declined to order that the Convention Question be on the front of the ballot,” Davis said.

“The Question is mandated by the State Constitution, arises once every 20 years, and consists of only 13 words. When placed on the back of the ballot, too many voters will not see it and will lose their constitutional right to correct state government. I, therefore, plan to appeal directly to the New York Court of Appeals as permitted by state law.”

Con cons, as they are known in Albany, are rarely approved by voters. The last one was backed in 1967, but the resulting convention did not produce any changes to the state’s constitution.