
    In the Matter of Gloria Harden et al., Respondents, v Board of Elections in the City of New York et al., Respondents. In the Matter of Joanne Bing, Respondent, v Marshall Berger et al., Respondents. In the Matter of Steven H. Reisberg, Appellant, v Joel H. Serebin et al., Respondents. In the Matter of Walter B. Tolub, Appellant, v Joel H. Serebin et al., Respondents. (And Two Other Titles.)
    Argued August 30, 1989;
    decided August 31, 1989
    
      APPEARANCES OF COUNSEL
    
      Robert M. Harding for appellants.
    
      Theodore S. Steingut for Gloria Harden and another, respondents.
    
      Douglas A. Kellner for Joel Serebin and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the applications for an order directing the Board of Elections to hold a write-in primary election denied.

The "opportunity to ballot” remedy fashioned in Matter of Hunting v Power (20 NY2d 680) was designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office. It was not intended to be a generally available substitute for the petition process set forth in article 6 of the Election Law. That legislatively prescribed process ensures that there is a sufficient level of support among party members eligible to vote for the office to justify placing a particular candidate’s name on the primary ballot or, in the case of a petition under Election Law § 6-164, that there is sufficient voter interest to justify holding a primary election by write-in ballot.

Thus, courts should invoke the Hunting remedy only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters (see, Matter of Quaglia v Lefever, 143 AD2d 238, lv denied 72 NY2d 805; Matter of Santoro v Kujawa, 133 AD2d 534, lv denied 70 NY2d 724; Matter of Hochberg v D'Apice, 112 AD2d 1067, affd 65 NY2d 960). This case — where a majority of the signatures on the designating petitions of each candidate were invalid because they were obtained from persons who were ineligible to sign the petitions, either because they lived outside the district, were not registered voters or were not members of the Democratic Party — does not qualify for the exceptional equitable remedy of a write-in primary. The number of signatures obtained from eligible persons, even if technical defects are ignored, fell far short of the number required by statute for party designation or to petition for a write-in primary (see, Election Law § 6-164).

Nor may the valid signatures obtained by the two candidates be aggregated to supply a predicate for the relief requested. Inasmuch as we are dealing with the primary designation of a particular party, as opposed to the general election, our holding does not disenfranchise any voters at the general election.

Hancock, Jr., J.

(dissenting). In my view, the lower courts properly directed a write-in ballot, relying upon Matter of Hunting v Power (20 NY2d 680), so as not to disenfranchise the party electorate in a primary election for the office of Civil Court Judge. The majority’s conclusion that the opportunity to ballot remedy can cure only "technical, but fatal defects in designating petitions” (majority mem, at 797) substantially narrows, if not effectively overrules, the rule in Hunting. Indeed, under the rule now adopted, under the facts of Hunting itself, the opportunity to ballot remedy would not have been ordered. In Hunting, not only were 20% of the signatures in the invalidated petition those of out-of-district signatories, but in Hunting, approximately 20% (or at least 210 signatures) were forgeries. Significantly, in Hunting the number of valid signatures to support any candidate was lacking. Thus, there is no support for a conclusion that the deficiencies in Hunting were "technical”. Here, combining the number of valid signatures contained in the two invalidated petitions, a sufficient number of valid signatures exists to support a single petition, or a petition for a write-in ballot under Election Law § 6-164.

In my view, no persuasive policy reason has been shown for substantially eroding the sound rule of Hunting. On the contrary, I believe this decision frustrates the important policy reason underlying the Hunting rule — protecting an interested electorate from disenfranchisement (see generally, Matter of Brown v Ulster County Bd. of Elections, 48 NY2d 614, 616; Matter of Ramos v Alpert, 41 AD2d 1012, 1014; Anderson v Celebrezze, 460 US 780, 786-788). The protection afforded by the Hunting rule should not be lightly cast aside. Here, the intent to "nominate some candidate” is manifest (Matter of Hunting v Powers, 20 NY2d, at 681, supra [emphasis added]), and the reversal of the lower courts’ direction to allow a write-in ballot would operate to disenfranchise the party electorate in this primary election and, thus, prevent the electorate of one of the two major parties from having a candidate on the ballot in the future general election. Accordingly, I respectfully dissent.

Chief Judge Wachtler and Judges Simons, Kaye, Titone and Bellacosa concur in memorandum; Judge Hancock, Jr., dissents and votes to affirm in an opinion; Judge Alexander taking no part.

Order reversed, etc. 
      
       Contrary to the majority view, I find it particularly significant that the aggregate number of valid signatures would be sufficient to place a candidate on the primary ballot. Indeed, the Legislature recognized in Election Law § 6-164 that an intent to nominate some candidate of the party can be sufficiently demonstrated by designating petitions which do not specify the name of any candidate. Hunting relief contemplates exactly what was done here by the lower courts — i.e., granting the party electorate the opportunity to write in any candidate of their choice. Notably, no individual candidate’s name is being placed on the ballot.
     