
    In the Matter of Vito P. Battista, Respondent, v. James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Appellants; John V. Lindsay et al., Respondents, and Gerald J. Turetsky et al., Intervenors-Respondents.
    Argued October 27, 1965;
    decided October 28, 1965.
    
      
      Leo A. Larkin, Corporation Counsel (Robert E. Hugh of counsel), for Board of Elections of the City of New York, appellant.
    I. The plain mandate of section 248 of the Election Law must be observed unless its application would result in unconstitutionality. (Matter of Belford v. Board of Elections, 306 N. Y. 70; Matter of Lazer v. McNab, 19 A D 2d 830, 13 N Y 2d 935.) II. Assuming, arguendo, that equities may be considered in the construction of the statute, retention of the traditional position of the propositions, amendments and question must prevail over the granting of a separate column to the Independent Citizens body. (Matter of Haviland v. Ellrodt, 268 N. Y. 488; Matter of Aurelio [Cohen], 291 N. Y. 176.)
    
      Justin N. Feldman for Abraham D. Beame, appellant.
    I. Special Term was correct in holding that the circumstances of this case do not warrant departure from the express mandates of section 248 of the Election Law. (Matter of Nulty v. Board of Elections, 296 N. Y. 645; Matter of Belford v. Board of Elections, 306 N. Y. 70; Matter of Lazer v. McNab, 19 A D 2d 830, 13 N Y 2d 935.) II. The Civil Service Fusion party is entitled to a separate column on the voting machine. (Matter of Haviland v. Ellrodt, 268 N. Y. 288; Matter of Aurelio [Cohen], 291 N. Y. 176.) III. Special Term had jurisdiction and none of the political parties or candidates were necessary parties.
    
      
      Robert MacCrate and David W. Peck for John F. Lindsay and others, respondents.
    I. There is no provision of law that requires an exclusive column to be assigned to the Civil Service Fusion party rather than to any other independent body. (Matter of Haviland v. Ellrodt, 268 N. Y. 488; Matter of Aurelio [Cohen], 291 N. Y. 176.) The Independent Citizens party is entitled to be restored to its position in column E as determined by the Board of Elections on September 27, 1965. (Matter of Gilfillan v. Beyer, 124 Misc. 628, 212 App. Div. 855, 240 N. Y. 579; Matter of Haskell v. Voorhis, 246 N. Y. 256; Matter of Callaghan v. Voorhis, 252 N. Y. 14; Matter of Lynn v. Nichols, 254 N. Y. 630; Matter of Crane v. Voorhis, 257 N. Y. 298; Matter of Nulty v. Board of Elections, 271 App. Div. 791, 296 N. Y. 645; Matter of Smyth v. Westchester County Bd. of Elections, 198 Misc. 604; Matter of Belford v. Board of Elections, 306 N. Y. 70; Matter of Lazer v. McNab, 19 A D 2d 830,13 N Y 2d 935.)
    
      Lewis Abrahams and Maurice N. Abrahams for Vito P. Battista, respondent.
    Special Term followed and adhered to the statutory mandate in its order and the Appellate Division erred in its modification thereof. (Matter of Nulty v. Board of Elections, 296 N. Y. 645; Matter of Belford v. Board of Elections, 306 N. Y. 70; Matter of Lazer v. McNab, 13 N Y 2d 935; Matter of Schmidt v. McNab, 13 N Y 2d 935.)
    
      Maurice A. Reichman for intervenors-respondents.
    I. The Board of Elections has the discretion to award the candidates of an independent body a separate row or column even though those candidates have been nominated by two parties. (Matter of Crane v. Voorhis, 257 N. Y. 298; Matter of Gilfillan v. Beyer, 240 N. Y. 579; Matter of Aurelio [Cohen], 291 N. Y. 176; Matter of Smyth v. Westchester County Bd. of Elections, 198 Misc. 604; Matter of Cannizzaro v. Tubman, 23 Misc 2d 280,10 A D 2d 718; Matter of Belford v. Board of Elections, 306 N. Y. 70.) II. Petitioner at Special Term failed to show that the Board of Elections acted arbitrarily with respect to the intervening appellant. Therefore, the order should be reversed. (Matter of Walsh v. Boyle, 179 App. Div. 582; Matter of Luchowski v. Lawley, 26 Misc 2d 148, 11 A D 2d 1084; Matter of Curran [Cohen], 266 App. Div. 609, 291 N. Y. 682.) III, The order at Special Term has been unduly harsh and prejudicial to these intervening appellants.
   Chief Judge Desmond.

I vote to reverse the order appealed from and to reinstate the Special Term order. I do so under the compulsion of section 248 of the Election Law which in language too clear for misreading denies an additional “ independent ” column on the ballot to a candidate who already appears thereon as the candidate of two major parties. This old statute expresses a continuing legislative policy of preventing the major party candidates from pre-empting the whole ballot through the device of setting up independent political bodies.

No one doubts the constitutionality of section 248. True, in some particular situations the courts held that it could not constitutionally be enforced since in those instances application ‘ ‘ would be unfair and prejudicial to a particular class of voters ’ ’ (Matter of Callaghan v. Voorhis, 252 N. Y. 14, 18; Matter of Crane v. Voorhis, 257 N. Y. 298). “Unfair and prejudicial” must mean something beyond detriment or inconvenience since the Legislature itself has said that fairness calls for the prohibition of a third column. The kind of unfairness and prejudice which would make the section unconstitutional as to a particular group must be of such character as to deprive that group of proper representation on the voting machine or otherwise make it practically impossible for the members of that group to vote as such. No such unfairness or prejudice appears here, especially when we take into account all the circumstances of the case as we are commanded to do by the precedents (see 257 N. Y., p. 301). I do not see how it could be considered constitutionally unfair to the Lindsay candidates to deny them a third line when to do so would not only leave several other independent political bodies off by themselves and huddled together on one line of the machine, but would result also in putting the proposed important constitutional amendments and questions in an inaccessible place at the bottom corner of the machine. Under the Special Term order there can be no unconstitutional unfairness since the candidate who is demanding a third line will still have two lines and the other two major candidates will have two lines and one line respectively.

What “ unfairness ” there is here results from administrative delay in deciding on the makeup of the machine with the further result that this litigation, affecting thousands of voting machines, comes to us only four days before election.

I concur fully with Judge Burke’s opinion.

Burke, J. (concurring).

Under section 248 of the Election Law a candidate who has the nomination of two regular parties is not entitled to a third column on the voting machine under the emblem of an independent body.

All other candidates nominated by independent bodies must each have a separate column before any so-called constitutional or equitable claims can be entertained by the courts. The Board of Elections has by the resolutions in this case repeatedly ignored the explicit language of section 248 of the Election Law. The law as enacted by the Legislature must be enforced (Matter of Nulty v. Board of Elections, 296 N. Y. 645). Since there were separate columns available to all candidates nominated by independent bodies in the cases of Matter of Belford v. Board of Elections (306 N. Y. 70), Matter of Crane v. Voorhis (257 N. Y. 298), and Matter of Aurelio (Cohen) (291 N. Y. 176), the issue of the priorities of candidates nominated by independent bodies was not there involved. Here the Socialist Workers party independent candidates, the Socialist Labor party independent candidates, the United Taxpayers party independent candidates and the Civil Service Fusion party independent candidates must be set forth if possible in the separate columns by the Board of Elections in order to satisfy the mandate of section 248 of the Election Law before any attention can be given to the demands of the Independent Citizens party candidates who have the nomination of more than one regular party. The local candidates of the Independent Citizens party, a political body, who have been nominated by one regular party only, of course, should be treated by the Board of Elections on equal terms with the other independent political bodies such as the Socialist Workers party and Socialist Labor party. The Lindsay candidates (other than those for local offices) must elect upon which of the two party columns they desire the emblem of the independent body to appear (Election Law, § 248; Matter of Nulty v. Board of Elections, 296 N. Y. 645, supra; see Matter of Lazer v. McNab, 13 N Y 2d 935). As Judges Fuld and Van Voorhis stated in the dissent in Matter of Belford v. Board of Elections (306 N. Y. 70, 72), “ We see nothing unreasonable in the statute’s preventing his name from being listed also as an independent ’. ’ ’ In this situation where the candidates of several independent bodies must of necessity be herded together in one column, it is illegal to list the Lindsay candidates nominated by more than one regular party in a separate column as “ independent ”. Such a listing in defiance of the statute relegates candidates of an independent political body not nominated by more than one or any political parties to a catchall column. The statute was enacted to protect independent political bodies without affiliation with the regular political parties. In this case the statute has been flouted and its misuse sought to be justified even though it has resulted in an obvious discrimination against the very independent political bodies the statute was designed to benefit.

The Legislature expected the courts to be alert against the appropriation and monopoly of the lines on the voting machines by the accredited parties in sponsoring independent political parties to the exclusion of the truly independent bodies.

The short time allowed for correction of the ballot errors prevents the ordering of a fair drawing among the qualified groups of candidates nominated by the independent political parties for places in the separate columns. But the shocking treatment dealt out to the supporters of the amendments, the propositions and the question which produces gross inequities in respect to these State-wide referendums can be rectified by removing the Lindsay candidates nominated by more than one regular party from column E. .

Accordingly, the order of the Appellate Division should be reversed.

Fuld, J. (dissenting).

Although Judge Van Voorhis and I dissented in 1953 from the court’s holding in Matter of Belford v. Board of Elections (306 N. Y. 70), that decision does represent the law of this State and I perceive no basis or justification for departing from the rule there clearly announced by the majority —namely, that “ ‘ strict observance of the letter of section 248 [of the Election Law] * * * would interfere unnecessarily with the intelligent and ready expression of his choice by the independent voter ’ ” (p. 73).

In the Belford case, the court was impelled to decide as it did by virtue of the fact that to deny to the independent political body there involved, the United City party, a separate line would tend to discriminate against a large body of independent voters who might refrain from voting for the independent candidate rather than vote for him as a candidate of one of the major parties. In that case it was pointed out that the petitions filed on behalf of the independent political body bore 1,742 signatures — representing some 22% of the electorate—whereas in the present case the petitions of the political body here involved, the Independent Citizens party, contain upwards of 48,000 signatures. In following this court’s decision in Belford, the Appellate Division observed that to refuse a separate line or column to such a body would 1 work an inequity * # * [and] tend to interfere with a free choice ” by a large number of independent voters. The persons who signed the petitions in the present case represent a far smaller percentage of the electorate, it is true, than did the signers in Belford but the decision in the latter speaks of the unnecessary interference with the expression of choice by the individual “independent voter ” and the number of voters involved here is incomparably greater than those complaining in Belford. (See, also, Matter of Lazer v. McNab, 13 N Y 2d 935, affg. 19 A D 2d 830.)

The integrity of the law demands that the courts refrain from making a special rule for a particular case. I would be willing to vote to overrule this court’s decision in Matter of Belford (306 N. Y. 70, supra) and hold—in line with the view I expressed in dissent in that case — that the respondent Lindsay and his running mates are not entitled to have their names appear in a separate column for the independent political body. However, as long as Belford remains the law of this State, I firmly believe that the court is constrained to follow it. Certainly, the concern which the majority feels for the candidates of the Socialist Workers party and of the Socialist Labor party—none of whom have ever complained about their places on the machine and who (by the present decision) continue in those same places — furnishes no ground for eliminating the separate column which the Board of Elections itself actually assigned to the Independent Citizens party some weeks ago.

I would affirm the order appealed from.

Van Voorhis, J. (dissenting).

The view taken by the majority of this court is the same as that taken by Judge Fuld and myself in Matter of Belford v. Board of Elections (306 N. Y. 70). It was expressly overruled by the majority of the court in that decision which cannot be effectively distinguished from the present, and which has obviously been relied upon by the respondents in the circulation and obtaining of a petition signed by more than the total enrollment of the Conservative party and nearly as many as the total enrollment of the Liberal party in the City of New York. In reliance upon that decision, respondents have in addition circulated millions of pamphlets, cards and reprints appealing to independent voters to vote Bow E for Mr. Lindsay for Mayor. Now, it would seem, the rules are being changed while the candidates are playing the game, in such manner that candidate Beame is transferred to Bow E which is the row which the independent Lindsay voters have been solicited to vote, and the independent Lindsay party denied a separate column.

In the Belford case it was held that independent voters would be disenfranchised who might wish to vote for the candidate of an established political party but not on that party’s line. That factor is present here in an even greater degree. I vote to affirm as held by the Appellate Division.

Opinion by Chief Judge Desmond in which Judges Dye, Scileppi and Burke concur, the last named in a separate opinion in which Chief Judge Desmond and Judges Dye and Scileppi concur; dissenting and voting to affirm: Judges Fuld and Van Voorhis, in separate opinions in each of which the other concurs; Judge Bergan concurs for affirmance for the reasons stated in the Per Curiam opinion at the Appellate Division.

Order of Appellate Division reversed and that of Special Term reinstated, without costs.  