
    In the Matter of Marie A. Beary, in Her Own Behalf and on Behalf of Persons Similarly Situated, Appellant, against John F. English et al., Respondents.
    Argued May 31, 1956;
    decided May 31, 1956.
    
      
      Patrick J. Beary for appellant.
    I. Under section 1 of article Xm of the State Constitution and section 11 of the Election Law, the designating petitions and primary ballots pertaining to State committee must carry the party positions separately by sexes. (Matter of Burton v. Schmidt, 128 Misc. 270; Matter of Alexander v. Cohen, 169 Misc. 151, 255 App. Div. 721.) II. The use of the ballot proposed by the Nassau County Board of Elections would bring about confusing results and would lead to situations involving the violation of section 270 of the Election Law. III. The 1955 amendment to section 104 of the Election Law is unconstitutional if its effect with reference to the State committee is not to require that the primary ballot shall carry party positions separately by sexes.
    
      
      G. Burchard Smith, County Attorney (Francis J. Donovan of counsel), for William D. Meisser and another, respondents.
    The form selected by the Board of Elections in determining the form of the ballot gives effect to every applicable provision of the Election Law. (Matter of Belford v. Board of Elections of Nassau County, 306 N. Y. 70.)
   Dye, J.

The petitioner, a candidate aggrieved, herewith challenges for insufficiency the form and contents of the Democratic party primary ballot proposed by the Nassau County Board of Elections (Election Law, § 330, subd. 3).

While section 11 of the Election Law requires, whenever the rules of the State committee provide for equal representation of the sexes from each unit—that the primary ballot list the candidates for party position separately by sexes, we do not read it as prescribing that the listing as to sex shall be in any particular form or method, so long as the sex of the'candidate for party position is clearly and plainly indicated. This the board proposes to do here by the use of the word “ male ” or ‘ ‘ female ’ ’, as the case may be, after the name of each candidate. This, in our view, is neither forbidden by nor inconsistent with anything said in section 11. Furthermore, when the board proposes to group the names of the candidates in accordance with the same designating petitions, it is pursuant to specific authorization contained in subdivision 2 of section 104. When it does so, it may validly put at the head of each group a blank circle, and surround it with the plainly printed instruction: “ For a straight ticket mark within the circle ”, as provided in subdivision 6 of section 108.

We regard as insubstantial the challenge directed to the validity of the 1955 amendment to section 104 as a constitutional enactment.

The party primary ballot in the form and contents as proposed by the Nassau County Board of Elections is not violative of the Election Law. We pass on no other question.

The order appealed from should be affirmed.

Froessel, J.

(dissenting). Section 11 of the Election Law, since the enactment of chapter 542 of the Laws of 1929, has provided that the state committee of each party shall have power to make its own rules * * * and may provide for the equal representation of sexes from each unit. * * * When, any such rule provides for the equal representation of sexes from each unit, the * * * primary ballots shall carry such party positions separately hy sexes.” (Emphasis mine.) In Matter of Burton v. Schmidt (128 Misc. 270 [1926]), among other cases, it was held that such a rule was in violation of article YTTT of our State Constitution, as it then read.

The 1938 Constitutional Convention adopted, and the People approved, an amendment to section 1 of said article, authorizing “ any committee of a political party * * * by rule ” to “ provide for equal representation of the sexes on any such committee ”. We are told that such a rule was duly adopted in this case. During the debates of said convention [New York State Constitutional Convention 1938, Revised Record, Vol. Ill, pp. 2424-2429], it was urged that the proposed amendment was intended to provide for equal representation of the sexes on committees ” of political parties, so that women may enjoy all of the privileges accorded to voters of political parties ” (p. 2426). Mrs. Helen Z. M. Rodgers, chairman of the convention’s committee on the “ Right of Suffrage and the Qualifications to Hold Office ”, to which committee this proposition was referred, stated, during a discussion in which Governor Smith participated, that where political parties do provide the rule “ as in the case of a state committee of either party, they have separate ballots for men and women ” (Yol. Ill, pp. 2427, 2428; Yol. II, pp. 994-995).

It was in this setting that the amendment was adopted. Despite the constitutional protection now afforded section 11 of the Election Law, the respondent Board of Elections has recently determined it is unnecessary that ‘ ‘ primary ballots shall carry such party positions separately by sexes ”, but rather that such ballots may carry such party positions together, irrespective of sexes. We hold that this may not be done, for to do so would not only constitute a clear violation of the statute, but would also tend to much confusion, and defeat the very object of the statute.

The recent amendment to subdivision 2 of section 104 of the Election Law (L. 1955, ch. 405) does not aid the respondents. As stated by the Joint Legislative Committee on the Election Law, in its report to the Legislature (N. Y. Legis. Doc., 1955, No. 79, pp. 38-39) its purpose Avas to clarify the law and correct the misinterpretation by some boards of election as to the manner in which they shall determine by lot the order in which the names of candidates for party positions shall appear on the ballot, an issue not presented here. Moreover, as pointed out by the committee, the language of this amendment is expressly limited in operation “ for the purposes of this subdivision ”.

Nor does subdivision 6 of section 108 conflict with section 11, for they are readily reconcilable. That section (108), which was enacted long before the 1929 amendment to section 11, provides generally for the grouping of candidates for a party position where two or more are to be elected, but when party rules, authorized by article XIII of the Constitution in 1938 and by section 11 of the Election Law, provide “ for the equal representation of sexes from each unit ”, the latter section which modifies subdivision 6 of section 108 must be obeyed, and the “ primary ballots shall carry such party positions separately by sexes.” When there are no such party rules, section 108 has full application.

The order appealed from should be reversed, and the respondent Board of Elections directed to comply with section 11 of the Election Law.

Desmond, Fuld and Van Voorhis, JJ., concur with Dye, J.; Fboessel, J., dissents in an opinion in which Conway, Ch. J., and Burke, J., concur.

Order affirmed.  