
    Carol S. Neale et al., Respondents, v. Albert T. Hayduk et al., Constituting the Board of Elections of Westchester County, et al., Appellants.
    Argued August 27, 1974;
    reargued September 4, 1974;
    decided September 4, 1974.
    
      
      Gerald Harris, County Attorney (Lawrence J. Glynn of counsel), for appellants.
    I. Plaintiffs have not been deprived of equal protection of the law by New York’s system of delayed enrollment (Rosario v. Rockefeller, 410 U. S. 752; Evans v. Cornman, 398 U. S. 419; Matter of Vann v. Duberstein, 30 N Y 2d 873; Shapiro v. Thompson, 394 U. S. 618; United States v. Guest, 383 U. S. 745; Zemel v. Rusk, 381 U. S. 1; Dunn v. Blumstein, 405 U. S. 330.) II. The State is required to impose a cutoff in order to permissively control party enrollment. (Matter of Jordan v. Meisser, 29 N Y 2d 661.) III. There is a valid distinction between transfers of enrollment across county lines within the City of New York, those counties whose boundaries intersect incorporated villages, on the one hand and county lines within the State of New York generally on the other.
    
      J. Henry Neale, Jr., respondent, pro se, and for Carol S. Neale, respondent.
    I. This is an attempted transfer of an existing valid enrollment and not a change of enrollment. (Rosario v. Rockefeller, 410 U. S. 752; Matter of Rogoff v. O’Rourke, 29 N Y 2d 664; Matter of Vann v. Duberstein, 30 N Y 2d 873; Matter of Jordan v. Meisser, 29 N Y 2d 661, 405 U. S. 907; Dunn v. Blumstein, 405 U. S. 330; Kusper v. Pontikes, 414 U. S. 51.) II. The Election Law divides registered and enrolled voters into two classes and treats those who moved their residence within the same county, city or village differently from those who moved their residence to another county in the State. (Carrington v. Rash, 380 U. S. 89.) III. There is no compelling State interest to justify such a classification. (Williams v. Rhodes, 393 U. S. 23; San Antonio School Dist. v. Rodrigues, 411 U. S. 1; Cipirano v. City of Houma, 395 U. S. 701; Phoenix v. Kolodziejski, 399 U. S. 204; O’Brien v. Skinner, 31 N Y 2d 317, 414 U. S. 524.) IV. There is not even a rational basis to justify such a classification. (Evans v. Cornman, 398 U. S. 419.) V. Administrative supervision of the election process may easily be achieved in other less restrictive ways. (Shelton v. Tucker, 364 U. S. 479.)
    
      Louis J. Lefkowits, Attorney-General (David R. Spiegel and Samuel A. Hirshowits of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. Contrary to the opinion of the court below, plaintiffs’ claims are clearly precluded by the authority of prior Federal and State case law. 
      (Rosario v. Rockefeller, 458 F. 2d 649, 410 U. S. 752; Matter of Vann v. Duberstein, 30 N Y 2d 873; Matter of Jordan v. Meisser, 29 N Y 2d 661, 405 U. S. 907; Matter of Rogoff v. O’Rourke, 37 A D 2d 763, 29 N Y 2d 664; Oregon v. Mitchell, 400 U. S. 112; Dandridge v. Williams, 397 U. S. 471; McDonald v. Board of Election, 394 U. S. 802.) II. In any event, there is clearly a sound basis for the differing time delay provisions of sections 187 and 386 of the Election Law insofar as they prohibit or restrict the transfer of enrollments across party lines. (I. L. F. Y. Co. v. City Rent & Rehabilitation Admin., 11 N Y 2d 480; Bright Homes v. Wright, 8 N Y 2d 157.)
   Gabrielli, J.

Plaintiffs were enrolled as Democrats in New York County. They moved to Westchester County in May, 1974 and desire to vote in the September 10, 1974 Democrat primary. The County Board of Elections informed plaintiffs that they could register for the general election in November, but that they could not be treated as enrolled Democrats so as to be eligible for the September primary. They made out enrollment cards which were placed in a box not to be opened until after the November elections.

Section 186 of the Election Law provides that a registered voter may enroll as a party member by depositing his card at least 30 days before the general election each year. He would then be able to vote in the next succeeding primary. The effect of this statute, held valid in Rosario v. Rockefeller (410 U. S. 752), is to mandate that people must enroll within 8 or 11 months in advance of a primary depending on whether it is to be held in June or September. Section 187 provides certain exceptions to this waiting period except that subdivision 6 reimposes the waiting period 'where a voter moves from one county into another. The short of it is that a voter who had not moved into a county 30 days before a general election cannot vote in a primary election occurring as much as 11 months after that date. Subdivision 8 of section 187 would allow voters who move within New York City, even though across county lines, to enroll without time delay at least 30 days prior to the primary election and voters who move within one of the several villages in the State straddling two counties would receive the same consideration were they to move from one county into another.

Plaintiffs attacked subdivision 6 of section 187 as being unconstitutional in that it denied them equal protection under the United States Constitution. The Trial Justice agreed with plaintiffs and declared the provision invalid. A direct appeal was taken to this court under CPLB 5601 (subd. [b], par. [2]). "We are unable to concur in the view taken below.

As defined in Walters v. City of St. Louis (347 U. S. 231, 237), equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made. As stated in Matter of Dorn “ HH ” v. Lawrence “ II ” (31 N Y 2d 154, 158): “ It is fundamental, of course, that the Legislature may classify persons for purposes of legislation without infringement of the equal protection guarantee and that its discretion in this regard is broad and will not be disturbed if any state of facts can reasonably be conceived to sustain its classification (Matter of 436 W. 34th St. Corp. v. McGoldrick, 288 N. Y. 346, 350, mot. for rearg. den. 289 N. Y. 673; Shielcrawt v. Moffett, 49 N. Y. S. 2d 64, 76, affd. 268 App. Div. 352, revd. on other grounds 294 N. Y. 180, mot. for rearg. den. 294 N. Y. 840; New York R. T. Corp. v. City of New York, 303 U. S. 573) or even if the, classification be fairly debatable (Matter of Presnell v. Leslie, 3 N Y 2d, 384, 390, mot. for rearg. den. 4 N Y 2d 1046), provided only it shall not be palpably arbitrary (New York ex rel. Bryant v. Zimmerman, 276 U. S. 63).”

; The Legislature has seen fit to make these distinctions which separate voters such as plaintiffs moving from one political subdivision (county) to another, from voters moving within the same municipal unit which also happens to lie within another stratum of local government. The former may not enroll in a party in their new location without observing the time period prescribed in section 186 while the latter may enroll as provided in subdivision 1 of section 187. We would be second guessing the Legislature were we to rule that no rationale lies for this distinction. As observed by the Attorney-General, “ [s]ince counties, cities, and incorporated villages all have more or less unified party structures, a switch of enrollment can be accomplished without threat to the integrity of the electoral process ’ * * However, a transfer of enrollment between two unrelated counties plainly involves separate administrative units and may indeed pose difficulties.” There is, as pointed out in the concurring opinion, a demonstrable rational basis for the action taken by the Legislature. Conceding that limitations on the franchise must be justified by a compelling State interest, it does not follow that every regulatory device required to satisfy a compelling State interest must also be subject to the. same rigorous test. On the contrary, the regulatory device chosen need be satisfied only by a test of reasonableness so long as the overall limitation satisfies the compelling State interest. The Supreme Court has recognized that the State has a legitimate interest in requiring reasonable durational requirements for voting (Rosario v. Rockefeller, 410 U. S. 752, supra). That does not mean that the courts are entitled to tinker with every durational regulation utilized, so long as the choice of the mode and length of the durational requirement is reasonable, as indeed it is here.

Despite the dissent’s distinction of Rosario v. Rockefeller (supra) on the facts, i.e., that petitioners in that case could have enrolled in timely fashion under section 186, while here they cannot because of the restriction set up in subdivision 6 of section 187, the overriding theme of that case is that there is no denial of equal protection where the State imposes time delay restrictions on party enrollment in order to preserve the integrity of the various parties. New York’s delayed enrollment. scheme under section 186 was specifically upheld as tending to thwart the practice of “ raiding ” whereby voters in sympathy with one party designate themselves as voters of another party. so as to influence the results of the other party’s primary. Such practice could conceivably obtain with regard to intra-party raid-' ing as well, considering the tendency of parties often to split into factions. Rosario has specifically upheld our time limitations on enrollment and we fail to understand why the Legislature may not distinguish between voters moving from county to county from those moving within a county — or the City of New York even though the city, as a unique political subdivision, happens to encompass several counties. This is a legitimate distinction drawn to achieve demonstrably reasonable ends. It is important to note, for example, that for many purposes the City of New York is recognized as a unit, possessing as it does, a city-wide Board of Elections encompassing the five counties within its boundaries.

We note that in Matter of Jordan v. Meisser (29 N Y 2d 661, app. dsmd. 405 U. S. 907) this court unanimously upheld the validity of subdivision 6 of section 187 over petitioner’s argument that he was denied equal protection. He had moved to Nassau County from Georgia and filed a valid designating petition. He was kept off the ballot, however, because subdivision 6 forced him to observe the time delay provisions of section 186. We see no factual distinction in the instant case warranting our departure from this very recent position taken on the same statute. Perhaps the scheme laid out in sections 186 and 187 should be re-examined and altered so that these distinctions are done away with, but this is a task for the Legislature (see Matter of O’Brien v. Skinner, 31 N Y 2d 317, 320, revd. 414 U. S. 524), for we should not remodel the law on a scale which, as we believe, would be beyond judicial power (see F. T. B. Realty Corp. v. Goodman, 300 N Y 140).

The judgment should be reversed and judgment granted in favor of appellants declaring sections 187 and 386 of the Election Law to be constitutional insofar as here applicable.

Witmer, J.

(concurring). I agree with much that is said in the dissenting opinion. I concur for reversal, however, particularly upon the ground that we cannot hold that there is no reasonable basis for the classification enacted by the Legislature in subdivision 6 of section 187 and section 386 of the Election Law. Qf practical necessity, the laws with respect to primary elections relate to primaries wherein only local designees are standing (or “ running ”) for election albeit, in some years, wherein State-wide designees are standing for election. Voters within a city or village embracing a part or all of more than one county may reasonably be expected to be acquainted with the party designees and issues within such city or village and so capable of continuing to participate intelligently in its primary election after moving within that political subdivision. On the other hand, voters in New York City or in Westchester County, for example, may not reasonably be expected to know the party designees or issues in Erie County, Steuben County or Oswego County to which they might move. Thus, there is a reasonable basis for the time limitation of the classification in section 187 (subd. 2, par. [c]) as set forth in subdivision 6 thereof. The fact that in some instances the statute may lead to apparent unequal treatment of voters is not in itself decisive. Most legislation can be found to favor some and injure others. It is not the function of this court to review legislation which is reasonably based upon policy and matters of legislative judgment reasonably calculated to remedy conditions requiring correction.

Jones, J.

(dissenting). We think the majority has misapprehended the perspective in which the Supreme Court of the United States has held that restrictions on the right of franchise must be viewed. For our part we start with the views laid down by the Supreme Court of the United States in Kramer v. Union School Dist. (395 U. S. 621, 626-628): “ we must give the statute a close and exacting examination. ‘ [S]inee the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. ’ Reynolds v. Sims, 377 U. S. 533, 562 (1964). See Williams v. Rhodes [393 U. S. 23 (1968)], supra, at 31; Wesberry v. Sanders, 376 U. S. 1, 17 (1964). This careful examination is necessary because statutes distributing the franchise constitute the foundation of our representative society. Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. * * * Accordingly, when we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a ‘ rational basis ’ for the distinctions made are not applicable. See Harper v. Virginia Bd. of Elections, 383 U. S. 663, 670 (1966). The presumption of constitutionality and the approval given rational ’ classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality. And, the assumption is no less under .attack because the legislature which decides who may participate at the various levels of political choice is fairly elected.” As the court later wrote in Dunn v. Blumstein (405 U. S. 330, 337) with reference to its decision in Kramer, “ We concluded that if a challenged statute grants the right to vote to some citizens and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a oompellmg state interest. ’ ” (Emphasis in original.) We suggest that language from opinions in equal protection cases not involving electoral franchise, while interesting, is inapposite.

The legal issue presented here is whether the right to special enrollment in the same political party may constitutionally be denied a voter who moves into Westchester County when such right is expressly granted to a voter who moves from one election district to another within Westchester County.

We would hold that subdivision 6 of section 187 of the Election Law, which imposes the county-line limitation on special enrollment, is unconstitutional. The discrimination against enrolees situated as are these plaintiffs is the more invidious when it is recognized that even enrollees from a different county are entitled to transfer of enrollment if their change of residence lies across county lines in New York City or in one of the several villages lying in more than a single county (§ 187, subd. 8).

To say, as does the majority, that [w]e would be second guessing the Legislature were we to rule that no rationale lies for this distinction ” (supra, p. 186), is insufficient. In a jurisprudential sense it is the responsibility of the judiciary to measure legislative enactments against constitutional standards; in a legal sense the Supreme Court has told us that a rational basis is not enough to defeat a claim of denial of equal protection in a franchise case. Likewise, the conclusion of the concurring opinion that there is a “ reasonable basis for the time limitation ” {supra, p. 189) falls far short of meeting the “ compelling state interest ” test laid down by the Supreme Court.

In support of the county-line distinction of subdivision 6, the Attorney-General advances two arguments. We cannot accept either. We do not agree that changes of residence from out of county involve administrative difficulties significantly different from those confronted in within-county changes. Nor can we accept the assertion that the Democratic Party in Westchester County has a discrete identity so separate from the identity of the Democratic Party in New York County that the integrity of the former must be protected from Democratic ££ raiders ” from the latter. (See Rosario v. Rockefeller, 410 U. S. 752.) In our view neither of these contentions supports any conclusion that there is here a “ compelling state interest ” or that this restriction is “ necessary to promote ” such an interest.

Appellants’ reliance on Rosario {supra) is misplaced. In that case only section 186 was under consideration. The Supreme Court upheld that section against contentions that the period between the enrollment deadline therein and the next primary election was impermissibly long. In so doing, inter alia, the court noted that the petitioners there were not absolutely disenfranchised; they could have enrolled had they chosen to do so before the cutoff date. ££ Hence, if their plight can be characterized as disenfranchisement at all, it was not caused by § 186, but by their own failure to take timely steps to effect their enrollment.” (410 U. S., at p. 758.) “ New York did not prohibit the petitioners from voting in the 1972 primary election * * *. It merely imposed a legitimate time limitation on their enrollment, which they chose to disregard.” (410 U. S., at p. 762.) (Cf. Matter of Vann v. Duberstein, 30 N Y 2d 873.) Plaintiffs in the present case had no such option, of course; in no way could they have made themselves eligible to enroll for the 1974 primary under section 186. (See Kusper v. Pontikes, 414 U. S. 51, 60.)

Rosario did not involve the special enrollment provisions of section 187 or the classifications made therein. The provisions of subdivision 6 were referred to only in a footnote (n. 9, p. 759) and the Supreme Court expressly sidestepped' the issue now presented with the explicit statement that the petitioners in Rosario had no standing to raise it (410 U. S., at p. 759, n. 9).

In Matter of Jordan v. Meisser (29 N Y 2d 661, app. dsmd. 405 U. S. 907) also cited by the majority, the courts upheld a State-line distinction. We conceive that there is a significantly critical difference between a State-line and a county-line exclusionary boundary.

By contrast and more recently in O’Brien v. Skinner (414 U. S. 524) the Supreme Court struck down a voting-rights distinction based on a county-line demarcation. In O’Brien our election laws had been construed to deny the right to vote by absentee ballot to a pretrial detainee or a convicted misdemeanant if he were confined in the county of his residence but to accord him such right if he were confined in any other county in the State. Such county-line discrimination was held to constitute a denial of the equal protection of law guaranteed by the Fourteenth Amendment. Additionally we note in passing that the county-line distinction in the case now before us has been explicitly imposed in subdivision 6 and is not a sub silentio distinction of the sort referred to by the dissenters in 0 ’Brien.

Additionally, we note that even were there here a showing that a compelling State interest was served by the county-line limitation of subdivision 6, this would not be enough. “ It is not sufficient for the State to show that [franchise restrictions] further a very substantial state interest. In pursuing that important interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. ’ ’ (Dunn v. Blumstein, 405 U. S. 330, 343, supra.) Even were it to be assumed that there could here be found a very substantial State interest, appellants have made no attempt whatsoever to demonstrate that the objective sought to be achieved could not be accomplished through other less restrictive means. (Shelton v. Tucker, 364 U. S. 479, 488.)

We would thus conclude that the within-county restriction of subdivision 6 of section 187 as applied to these plaintiffs who after their move from New York to Westchester County wish to continue to participate in the activities of the Democratic Party, is violative of the equal protection clause and an impermissible denial of equality of franchise. This case accordingly should be remitted to Supreme Court, Westchester County, with directions for the entry of an appropriate judgment declaring the rights of plaintiffs in accordance with the views expressed herein, and the injunction heretofore entered herein should be made permanent. As so modified, the judgment of Supreme Court should be affirmed.

Chief Judge Breitel and Judges Staley * and Wither concur with Judge Gtabrielli; Judge Wither concurs in a separate opinion in which Chief Judge Breitel and Judges Gabrielli and Staley also concur; Judge Jones dissents in part and votes to modify in an opinion in which Judges Wachtler and Babin concur.

Judgment reversed, without costs, and judgment granted in favor of appellants declaring sections 187 and 386 of the Election Law to be constitutional insofar as here applicable. 
      
      . In the record in the present action, plaintiffs have also included documentary proof of their former enrollment in the Democratic Party in New York County. It does not appear, however, that such proof was ever submitted to the Board of Elections of Westchester County. Thus, in a technical sense, plaintiffs never sought a transfer of their New York County Democratic enrollment nor did the Board of Elections ever refuse to make such a transfer. In any event, we predicate our determination on plaintiffs’ right to special enrollment under section 187. In that view, we do not reach the issue whether plaintiffs also have a right to transfer their enrollments from New York to Westchester County. Accordingly we express no views with respect to the application or constitutionality of section 386 of the Election Law.
     
      
      . In eases of change of residence from out of county it would seem that the Board of Elections need only require the enrollee to furnish a certification from the Board of Elections of the county from which he has moved, showing his record of enrollment in that county. Such a simple certification should suffice in lieu of the Board of Elections’ own record in the instance of an in-county change of residence.
     
      
      . We note, too, that in consequence of their move from JSTew York County plaintiffs’ registrations have been canceled in New York County. Thus, under today’s decision they will be effectively foreclosed from voting in any 1974 primary.
     
      
       Designated pursuant to section 2 of article VI of the State Constitution.
     