
    In the Matter of Gordon Contessa et al., Appellants, v Eugene J. McCarthy et al., Respondents.
    Argued October 27, 1976;
    decided October 27, 1976
    
      
      Melvin L. Schweitzer, John B. Koegel, Sol R. Dunkin, Nicholas A. Clemente, Michael K. Feigenbaum and William J. Garry, New York City, for appellants.
    
      John Carter Rice, Michael J. Cunningham and Thomas O. Kellogg, Albany, for respondents.
   Memorandum. The order of the Appellate Division should be reversed. The Election Law requires an independent nominating petition for candidates to be voted for by voters of the entire State be signed by at least 20,000 voters, 100 of whom must reside in each of one half of the congressional districts in the State. (Election Law, § 138, subd 9, par [a].) To facilitate verification of compliance with the distribution requirement, the statute further provides that the sheets of the nominating petition be separated into volumes according to the congressional district of the majority of the signers’ residence. Within each volume the sheets must be arranged according to county. The cover sheet of each volume is required to set forth the name of the congressional district and each county, or portion thereof, contained in the volume. (Election Law, § 138, subd 8.)

The signatory sheets of the petition purporting to nominate a slate of electors pledged to the presidential candidacy of Eugene McCarthy were not filed or arranged in any kind of orderly fashion. Indeed, the individual signatures were solicited and collected in a haphazard manner. Virtually every sheet contains signatures from persons residing in several counties, not to mention congressional districts. For this reason, it was scarcely possible for the petitions to be collated according to congressional district. Faced with the disorderly collection of signatures, the organizers of this petition drive did not even attempt to begin to comply with the collation and segregation requirements.

There is no compliance with statute, let alone substantial compliance. This is not an idle matter of dry procedure. Most important, the statutory requirements are not merely that of binding and numbering but of classifying the signers by county and congressional district so that the existence, authenticity and qualifications of the signers may be verified. The failure to comply with the petition assembly provision rendered it impossible for election officials or potential objectors to verify the presence of the requisite number of signatures from the various congressional districts. Since the requirements for assembly of the petition exist to assure adequate opportunity to inspect for proper signature distribution and judicial review, the assembly requirements must be strictly construed.

Fuchsberg, J.

(concurring). I too vote to reverse.

In doing so, I am keenly aware of the absurdity of many of the stringencies imposed by our statutory scheme on those to whom it is intended to afford a fair opportunity to obtain a place on the ballot through the avenue of the independent petition (Election Law, § 138). The short legislatively fixed time interval within which signatures are to be gathered, in most cases by inexperienced volunteers, almost inevitably produces an abundance of irregularities, all the more so in a State-wide election contest for which a petitioner must obtain a minimum of 20,000 valid signatures, including at least 100 who reside in each of one half of New York State’s 39 congressional districts (Election Law, § 138, subd 9). The problem is compounded by the equally pressured time intervals within which courts, election boards and other interested parties are called upon to review them.

In reversing, I would therefore not do so on the ground that the requirements of subdivisions 7 and 8 of section 138 of the Election Law have not been met. Those requirements, which in my view are essentially administrative rather than substantive, besides the arrangement along county and congressional district lines to which the majority alludes, include such matters as the binding of the petition and the listing on cover sheets of the office involved, the name and residence of the candidate, the number of pages comprising the petition and the total number of signatures. The failure to strictly adhere to its provisions, while no doubt intended to aid those who later may be required to review the petitions, ought not, except in an extreme case, invalidate and thus disenfranchise the many thousands of voters who are its signatories. No statutory provision prohibits petition sheets from containing signatures of voters who reside in more than one district. For those who canvass for signatures multiple petitions would but add to the immense handicaps they already face. In short, in the case before us, I am in complete accord with the determination of the majority of the Appellate Division that, as regards subdivisions 7 and 8 of section 138 of the Election Law, the petition here was not fatally defective.

However, in resolving the other factual issues in this case, I am compelled to conclude, as did Special Term, that the individual signatures and those of the subscribing witnesses literally by the thousands were completely lacking in identification with regard to election or assembly district (Matter of Berry v Dodd, 38 NY2d 995; Matter of Rutter v Coveney, 38 NY2d 993) or were so deficient in other ways recognized by law as to bring the number of valid signatures well below the 20,000 mandated by law.

Accordingly, I join in reversing the order of the Appellate Division.

Gabrielli and Wachtler, JJ.

(dissenting). We feel it is unfortunate that the majority, rather than reach and determine the substantive issues necessary to determine the number of valid signatures, has seen fit to decide this matter on the failure of the candidate to fully comply with the binding and ordering requirements of subdivisions 7 and 8 of section 138 of the Election Law. There is no doubt that in election matters the courts should give greater weight to formal defects because uniformity is often essential to insure timely determinations. But we should also recognize the effect time pressures may have upon the candidate, particularly when a national office is sought requiring numerous signatures to be gathered throughout the State. Under these circumstances, considering the importance of the office, and the monumental task involved, we would not consider the failure of the petitions to literally comply with the statute to be fatal. Reaching the merits, we would agree with the Appellate Division that there are sufficient acceptable signatures to validate the petitions.

Chief Judge Breitel and Judges Jasen, Jones and Cooke concur; Judge Fuchsberg concurs in a separate concurring memorandum; Judges Gabrielli and Wachtler dissent and vote to affirm in a dissenting memorandum.

Order reversed, without costs, and judgment of Supreme Court, Albany County, reinstated in a memorandum.  