Blaikie v. Power
| Decision Date | 22 August 1963 |
| Citation | 243 N.Y.S.2d 185,193 N.E.2d 55,13 N.Y.2d 134 |
| Parties | , 193 N.E.2d 55 In the Matter of Robert B. BLAIKIE, Individually and On Behalf of Others Similarly Situated, Appellant, v. James M. POWER et al., Constituting the Board of Elections of the City of New York, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Harry H. Lipsig and Murray L. Lewis, New York City, for appellant.
Leo A. Larkin, Corp. Counsel (Morris Handel, Seymour B. Quel and Joel L. Cohen, New York City, of counsel), for respondents.
Aaron Nussbaum, Brooklyn, Mendel Zucker and Amos Basel, New York City, for Liberal Party of State of New York and others, amici curiae.
Joseph E. Ruggiero and Jack Rosenberg, New York City, for Republican County Committee of County of New York, and Morris Schwalb, New York City, for Republican County Committee of Bronx County, amici curiae.
John A. Garbarino, Staten Island, for Republican County Committee of Richmond County, amicus curiae.
Louis J. Lefkowitz, Atty. Gen. (Paxton Blair, Albany, of counsel), amicus curiae, in support of constitutionality of section 22 of New York City Charter.
Samuel D. Smoleff, New York City, for Citizens Union of City of New York, amicus curiae.
In this case, involving the constitutionality of the recently adopted New York City Charter provision relating to the election of councilmen at large, Johnson v. City of New York (274 N.Y. 411, 9 N.E.2d 30) which dealt with an earlier provision of a somewhat similar character is dispositive of the issue presented.
At the general election held in November of 1961, the following two questions were submitted to the voters of the City of New York:
'Shall the proposed new city charter recommended by the City Charter Revision Commission be adopted?'
'Shall the system of limited voting for the election of Councilmen-at-large, provided for in the Charter proposed by the Charter Revision Commission of the City of New York, be adopted?'
Both questions were answered in the affirmative by a majority of the votes cast, and the Charter as thus approved contained the provision here under review presently numbered section 22 which provides, in sum, that the City Council shall consist of a member to be elected from each senate district in the city and 10 additional councilmen at large to be elected borough-wide, two from each of the five boroughs. In prescribing the method of election of such councilmen at large, the Charter limits each voter to vote for a single borough-wide candidate, also providing that a party (or independent body) may nominate only one candidate for councilmen at large in each borough. There may, of course, be three or four or more candidates on the ballot for that office. This system of voting, known popularly as 'limited voting', was recommended after lengthy and thoughtful study by two successive commissions in order to make possible the election of minority representatives. 1
The primcipal challenge to the constitutionality of section 22 is that, by providing that a voter may vote for only one of the two candidates for the offices of councilmen at large from his borough, it deprives him of a right to vote for a candidate of his choice for both of the elective offices to be filled and thereby offends against section 1 of article, II, of our State Constitution. Entitled 'Qualifications of voters'. that section reads in part in this way:
'Every citizen of the age of twenty-one years, who shall have been a citizen for ninety days, and an inhabitant of this state for one year next preceding an election, and for the last four months a resident of the county, city, or village and for the last thirty days a resident of the election district in which he or she may offer his or her vote, shall be entitled to tove at such election in the election district of which he or she shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people, and upon all questions which may be submitted to the vote of the people.'
As indicated above, this court's decision and reasoning in the Johnson case (274 N.Y. 411, 9 N.E.2d 30, supra), in which proportional representation, a different form of limited voting, was upheld as constitutional, are decisive of the present appeal. Confronted with the very arguments now advanced to support the petitioner's contention that section 22 is unconstitutional, the court rejected them, concluding that proportional representation was not proscribed by any constitutional provision.
In Johnson, as here, it was urged that article II, section 1, of the Constitution was to be taken literally and that, as so read, it commanded that each voter was to have the unrestricted right to vote for each office to be filled. Although this view gained the adherence of Judge RIPPEY (274 N.Y., at pp. 439-440, 9 N.E.2d at pp. 42, 43), the majority decided otherwise, expressly holding that the purpose of the constitutional provision was solely to remove the disqualifications which attached to the person of the voter in earlier times and thereby assure to a citizen, qualified by age and residence, the same right to vote as every other similarly qualified voter possessed. In other words, section 1 of article II was designed not to regulate the mode of selection of elective officers but rather to regulate the status of voters and to protect otherwise qualified voters from electoral discrimination. As the court put it (274 N.Y., at pp. 418-419, 9 N.E.2d at p. 32):
(See, also, 11 N.Y.S.Const. Convention Committee (1938), pp. 139-171.)
Moreover, in distinguishing Matter of Hopper v. Britt (203 N.Y. 144, 96 N.E. 371, 37 L.R.A.,N.S., 825), the court observed that, whereas the provisions there considered related to 'a limitation placed upon one voter which did not apply to another voter in the same district', the proportional voting provision then before it 'treats all electors alike' and, accordingly, did not violate the Constitution (274 N.Y., at p. 423, 9 N.E.2d at p. 35). And, in concurring with the majority, Judge LEHMAN, after noting that section 1 of article II 'was drafted' to remove the disqualifications which attached to the person of a voter and not to assure an elector the right to vote for each and every office to be filled, concluded by stating that the proportional representation system 'does not violate the spirit of any of the great basic principles which are intended to be protected by the Constitution' (274 N.Y., at p. 433, 9 N.E.2d at p. 39). 'Though I share Judge RIPPEY's misgivings about the possible result of the innovation,' he said, 'such misgivings may not blind me to the fact that the innovation does not violate the spirit of any of the great basic principles which are intended to be protected by the Constitution and that it is possible to construe the letter of the Constitution in manner which will confine its letter to the purposes which it is clear that the letter was intended to cover.'
As is apparent from the foregoing, the question before us a very narrow one: Does the system of limited voting prescribed in section 22 so materially differ from the system of proportional voting upheld in the Johnson case as to bring it in conflict with article II, section 1?
The justice at Special Term thought it did; he believed that there was a difference of substance between the limited voting provisions of section 22 and those provisions relating to proportional representation in that, to cull from his opinion, under the former 'each elector can vote to fill only one of two vacancies * * * (being) thereby precluded from voting for every office to be filled', while under proportional representation 'every voter was afforded the opportunity to make a selection of a nominee for every vacancy to be filled within the political subdivision'. The purported distinction does not exist. A reading of old chapter 43 of the Charter which provided the method of election of councilmen by proportional representation demonstrates that under both the sanctioned proportional representation method and the limited voting system of section 22, the elector had a single 'vote' regardless of the number of offices to be filled. As provided in former chapter 43, the voter expressed his preferences or choices on his ballot by placing the number '1' in the square opposite the name of the candidate of his first choice, number '2' opposite his second choice and so on down the list (§ 1005). The instructions to voters contained in the statute recited, 'You may mark as many choices as you please' (§ 1005) but, in providing for the counting of the ballots, the applicable section of the Charter made it plain that the several alternative choices were not votes. Thus, section 1007 explicitly limited each voter to a 'single' vote, a 'Single transferable vote' (see Johnson v. City of New York, 274 N.Y. 411, 427-429, 9 N.E.2d 37, 38) and, indeed, in his opinion for the court, the Chief Judge remarked that (p. 424, 9 N.E.2d p. 35).
'The main argument against the constitutionality of this chapter has been that the proportional voting system permits...
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