Jurisdictional Statement — Blaikie v. Power

Office-Supreme Court, WS.

roy FIT.ED

NOV 12 1963

JOHN_F. DAVIS, CLERK

IN THE 4

Supreme Court of the United States

October Term, 1963

No.6. 1 a.

ROBERT B. BLAIKIE,

Appellant,

AGAINST

JAMES M. POWER, THOMAS MALLEE, MAURICE J.

O’ROURKE and JOBRN R. CREWS, as Commissioners

of Elections of the City of New York constituting the

Board of Elections in the Elections in the City of New

York and THE CITY OF NEW YORK,

Appellees.

JURISDICTIONAL STATEMENT

Ow AppeaL From THE JupGMENT oF THE New York

State Covert or APPEALS

Harry H. Lipsie,

Attorney for Appellant,

Robert B. Blaikie,

100 Church Street,

New York 7, New York.

Lopes Appral Passe, Inc., 4) Veszy Srazet, New Yous, N.Y. W0Orth 23-0689

INDEX

PAGE

TR Corer, pulet ens ee ee ae 1

REIL UR ie, SIR CER ph ts RAN 0 2

I NB A cast 2

NI a5 cancun hake ok ean atiaenn —3

Statement . %, Pe pater ek ane ¢, 454 Cathe eis Perey [ope hae 3

Snhstantial Questions Are Presented ............. 3

IE nates Sa by ah sage hoes eae sone seek 9

DE SPI aa buh aks xcs s dvb ance cues exe bo 11

EOL haves ss coke bea hee hh ade enon edceed 23

; *

ETE, oie es bud dn os o's a av baRbicede ves'che eau , of

CASES CITED

Ashlev v. White, 2 L.. D. R. AYM 938 ......)....... 6

Baker v. Carr, 369 7. S. 186 (1962) ......j)....... 6, 7,8

Colegrove v. Green, 328 T. S. 549 (1946) .......... 7

Day-Bright Lighting, Ine. v. Missouri. 342 U. S.

ER coe kann 5 caw ch owae cus che eeceeee 5

PAGE

Gray v. Sanders, 372 U. S. 368 (1963) ............ 6

Guinn v. United States, 238 U.S. 347 (1915) ...... 6

Nixon v. Condon, oR6 a Se Me os keeewccee ee

Nixon v. Heindon, 273 U. S. 536 (1927) ...........

Ray v. Blair, 343 U. S. 214 (1951) ............... 9

Rice v. Kilmore, 165 F. 34 367 ..... 22.05.22 0ees t

Smith v. Allright, 321 U. S. 649 (1944) ........... 6

U.S. v. Classic, 313 U. S. 299 (1941) ............. 6

Yick Wo v. Hopkins, 116 U. & 356 ............... 5

STATUTES CITED

New York City Charter, Section 22 ............. 2, 4, 8, 9

New York State Constitution ................... 2

Zee 36, 0. B.C. Seotion 557 (3) .....c0ececsecss 2

United States Constitution, Amendment 14 ....... 2,10

AUTHORITIES CITED

Aristotle—‘‘ Polities’’ Book IV

President’s Commission of Registration and Voting

PRE cw apaleecnaaasakseuaeererees ° 7

IN THE

—— Court of the Rnited —

Octoser Term, 1963

Rosert B. Buarkre,

Appellant.

AGAINST

James M. Power, THomas Mature, Maurice J. O'Rourke

and JouHnxn R. Crews, as Commissioners of Elections of

the City of New York constituting the Board of Elec-

tions in the Elections inthe City of New York and THe

Crry or New Yorn,

Appellees.

a | on

JURISDICTIONAL STATEMENT

Robert B. Blaikie, appellant herein appeals from the

judgment of the New York State Court of Appeals dated

August 22nd, 1963 dismissing his petition to declare un-

constitutional Section 22 of the New York City Charter

and respectfully submits that substantial questions are

presented by this appeal which merit review and decision

by this Monorable Court.

Opinion \

/

The opinion of the New York “State Court of Appeals

is reported in 13 N. Y. (2) 134 and is annexed hereto

as Appendix ‘‘A’’.

Jurisdiction é

This action was instituted to set aside Section 22 of

the New York City Charter as smnconstitutional pursuant

to the United States Constitution, Amendment 14 and the

New York State Constitution. The judgment of the New

York State Court of Appeals was entered on September

9th, 1963 and a notice of appeal was filed on September

13th, 1963. Jurisdiction of this Court to review the

judgment by direct appeal is prescribed by Title 28

Uv. S. C. Section ey (2).

,

v

Questions Presented

This case raises two major questions. One concerns

the right of a governmental body to place restrictions

upon political organizations in the nomination of candi-

dates for elected positions and the second involves the

right of the said governmental body to restrict and limit

the electorate in voting for all elective offices—

Simply stated, the questions are these: , +

1. Whether Section 22 of the New York City Charter

is unconstitutional because it violates the due process and

equal protection clauses of the 14th Amendment in the

United States Constitution by disenfranchising the elee-

torate and diluting, restricting and limiting their votes

by denying to them the right to cast their ballots and

have their votes counted for all elective offices.

2. Whether this section is unconstitutional because it

violates the 14th Amendment by limiting the number of

candidates that a political organization may nominate to

a lesser number than existing vacancies and thereby deny-

ing political organizations and its members the right to

nominate and elect candidates to fill all public offices.

3

Statutes Involved

The constitutional provision involved is the 14th Amend-

ment to the United States Constitution. The Statute in

question is Section 22 of the New York City Charter

(Appendix ‘*B’’), ae,

?

i

/

Statement

Substantial Questions Are Presented

In March of 1961, Chapter 87, Laws of 1961 of the

State of New York were signed into law and became et-

fective immediately. This amended Section 20 of the

City Home Rule Law provided that the Mayor of a City

may appoint a Charter Revision Commission for the pur-

pose of-drafting a new charter for the City. Pursuant

to this amendment, on April 2. 1961 Mayor Robert F.

Wagner of the City of New York appointed an 11 man

Charter Revision Commission.

This commission in its interim report of July 20, 1961

and its final report Angust 4, 1961 (Appendix (©) recom-

mended the adoption of a new City Charter containing a

provision ‘‘limiting each voter’’ to one vote for Council-

man-at-large even though there are two vacancies. It

also restricted to one the number of candidates a political

organization may nominate. ;

Thereafter, at the general election of November 7, 1961

the propositions pertaining to this charter were submitted

to the public.

The Charter, as recommended by the Commission, was

approved.

4

This City Charter for the City of New York contains

Sec. 22, herein complained of. This Section provides for

the election of two Councilmen-at-large in each of the

boroughs in New York City but restricts political OF

izations from nominating ‘‘more than one candidate “* *

in any borongh’’ and limits the qualified voter ‘‘to vote

for not more than one eandidate * * * in each borengh’’.

It is thé intention of this Section to insure minority

“representation within the New York City Council. No ex

ception is made to this commendable objective. However,

most serious objection is made to the elective procedure

prescribed in the Charter.

Section 22 in providing for only one candidate from

each political organization and by restricting the elector

to vote for less than the number of elective offices on the

ballot, is unreasonable, discriminatory and violative. of

constitutional grant to nominate and vote for all eandi-

dates for public office.

A fundamental principle of American government is set

forth in the clause whick states that the ‘‘just powers’”!

of government are derived from the ‘‘consent of the gov-

erned’’.? See. 22 makes an outright gift of a purported

elective office to a minority candidate. This is not gov-

ernment by the ‘‘consent of the governed.’’’

Our Courts have long recognized the right of the in-

dividual to participate in the selection of governmental

officers. In Rice v. Elimore, 165 F. 2d 387, the Court, at

page 392 said:

1 Declaration of Independence.

2 Thid.

3 Ibid.

5

‘*An essential feature of our form of govern-

ment is the right of the citizen to participate in

® governmental process. The political philosophy

of the Declaration of Independence is that govern-

ments derive their just powers from the .onsent of

the governed; and the right to a voice in the selee-

tion of officers of government on the part of all

citizens is important, not only as a means of in-

suring that government shall have the strength of

popular suppor, but also as a means of securing to-

the individyal citizen proper consideration of his

rights by those in power. The disfranchised can

never speak with the same force as those who are

able to vote.”’

Elections can be really free only when people have a

choice between alternatives and a way to express their

choice. , Such choice must be made through a truly free

vote, with all offices open to all qualified candidates and

without limitation upon qualified voters in the exercise

of their franchise.

Voting is a necessary and essential civil liberty; it is

the basie privilege of democratic government. Justice

Douglas, recognizing ‘this principle in Day-Bright Light-

ing, Inc. v. Missouri, 342 U.S. 421 (1951), stated: .‘‘The

protection of the right of sutferage under our scheme of

things is basie and fundamental’ (p. 424). As the court

said in 1886, in Vick Wo v. Hopkins, 118 U. S. 356, 370,

the right of franchise ‘tis regarded as a fundamental po-

litieal right, because preservative of all rights’’.

This Court has cdénsistently stricken all electoral

schemes that wou'd limit and restrict the votes of the

electorate.‘ The right of the individual to vote was re-

enunciated in Gray v. Sanders, 372 U.S. 368 (1963). Jus-

tice Stewart concurring therein said: ‘‘* * * there can

be room tor but a single constitutional rule—one voter,

one vote’’ (p. 582).

To be a citizen in a democracy means that one shares

ip all of the privileges and responsibilities of that form

of government. One of the most baportant privileges is

the right to vote. In Smith vo Allright, B21 UL S. 649

(1944), at pages 661-662, the Court said: *** * * The

right to vote in a general election, is a right secured by

the constitution.”’

Justice Donglas in Gray v. Sanders, supra, for. the ma-

jority, said that an individual **whose right to vote is

impaired has the right to sue for redress."'° He further

stated:

‘The conception of political equality from the

Declaration of Independence, to Lincoln’s Gettys-

burg Address, to the 15th, 17th and 19th Amen+-

ments can mean only one thing-—one person, one

vote’? (p. 381).

Throughout the history of the United States, it has

continuously extended democracy by making it possible

*U. S. v, Classic, 313 U. S. 299 (1941): Baker v. Carr, 309

U. S. 186 (1962): Nixon v. Condon, 286 VU. S. 73 (1931); Guinn

v. United States, 238 U.S. 347 (1915): Nixon v. Heindon, 273 U.S

$36 (1927).

® The opinion in 4 footnote at page $75 cited Chief Justice Holt

in Ashley v. White, 2 LL. D. R. AYM 938: “a right that a man

has to give his vote at the election of a person to represent him in par

lament * * * 1s a most transient thing, and of a high nature * * *

(1)t is a great injury to deprive (him) of it.” This opinion rendered

250 years ago highlights the ever real concern over any restriction

placed upon the qualified voter.

>

for more and more people to vote. First, there was the

gradual elimination of property qualifications. Then

freed slaves were made citizens and given the right to

vote and finally women were given the vote by eonstitu-

tional amendment.

Today there is a growing movement toward the widen-

ing of the franchise, for example, to nermit 18 vear olds

to vote. Section 22 of the New York City Charter in

reversing this trend, places unwarranted restrictions and

limitations on the right of a qualified elector to vote.

A great tragedy in Ameriean polities is the fact that

a lJarge number of qualified citizens do not take the

trouble to vote. A strong and effective demoeratie gov.

ernment depends upon the full participation by the elee-

torate.” Civie groups, politicians and even a Presiden.

tin] Commission? exhort the electorate to register and

vote. Today, in New York City, the qualified voter is

denied his right of franchise and eannot ‘‘share in the

yovernment to the utmost’’.*

In Colegrore v. Green, 328 U.S. 549 (1946) the Court

declined jurisdiction to determine the constitutionality of

the Ilinois Apportionment Law.* In the minority opin-

ion by Justice Black joined in by Justices Donglas and

Murphy. it was stated:

* Aristotle in “Politics” Book IV said: “If liberty and equality, as

is thought Iw some, are chiefly to he found in democracy, they will be

best attained when all persons alike share in the government to the

utmost”

7 President's Commission of Registration and Voting Participation.

* Aristotle: “Politics”, Book TV

* Baker v. Carr, 3069 U.S. 186 (1962) of course upheld the right

of an irdividual to sue to compel reapportionment and in effect over-

ruled the maioritv opinion in Colegrove v. Green, supra.

re)

‘“* * * the constitutionally guaranteed right to

vote and the right to have one’s vote counted

clearly imply the policy that State election sys-

tems, no matter what their form, should be de-

signed to give approximately equal weight of each

vote case. * * * legislation which must inevitably

bring about glaringly unequal representation in the

Congress in favor of special classes and groups

should be invalidated, ‘whether accomplished in-

genuously..or imgennonsiv’ (570-571).

New York City, second only to the Federal Govern-

ment, has the largest budget in the country. It is the

City Council that enacts the tax legislation for the City

of New York.

The election of the ten Councilmen-at-large to the City

Couneil ‘‘by limited voting’’ denies complete and fair

~epresentation to the voter and taxpayers of the City of

New York." The electorate is denied equality under the

"© In view of the decision in Biker v. Carr, cited supra in the held

ing that apportionment statutes and/or misapportionments may now be

questioned in the Federal Courts the minority opinion herein cited ha-

heen in effect adopted by this Court.

MAt the genera! election of Nov. 5 1963. there were 1.656.800 vete~

cast in New York City in the race for Couucilmen-at-large. The vote-

hy borough is as follows: Manhattan 315,221. Bronx 314.339. Brook

Iwn 595.535. Queens 401.346, Richmond 57,119

In all of the Boroughs with the exception of Richmond, the top can

didate in the race received more than 30% of the total votes cast in

the election. Tlic second highest. who of course. was elected by the

system. prescribed by Sec. 2? of the Citv Charter, in two of the bor.

oughs, received less than 59% of the vote cast for the one receiving

the highest number of votes. The votes cast in the various boroughs

for the two individuals elected to the position of Councilmen at large

is as follows: Manhattan 100,589 and 169.386: Bronx 79.269 and

181.575; Brookiyn 127.790 and 267,321: Queens 164.762 and 258.680

and Richmond 27.136 and 24.714

It is obvious from the figures herein that 1.056.860 votes were denied

the franchise; denied the right to vote for all officers to be elected.

9

law in representation within the City Council by being

denied their right to vote for all cficers.

Sec. 22 of the New York City Charter denies the right

of a political party to nominate a candidate for all elee-

tive offices in a general election There have been politi-

eal parties in the United States since the founding of the

Republic. It has been these free independent political

organizations which have contributed and maintained the

democracy that exists in the U. S. today. It is funda

mental that those countries that have restrained, re-

stricted and suppressed the political parties have become

a dictatorship.

All attempts by a legislature to restrict apolitical

party in nominating a qualified candidate for all eleetive

positions should and must be condemned by the Courts

(Cf. Ray v. Blair, 348 0. S. 214 [1951]).

Conclusion

Consistent with the Federal Constitution a State may

enact reasonable qualifications for voters. Once these

qualifications, however, have been established the State

may not thereafter discrimimate amongst those whom it

has qualified, by restricting their right to exercise their

Pratehiss completely in voting tor all elective offices.

The State of New York established qualifications fpr

its electorate and then New York City acting under Sfate

authority restricted, limited and diluted the votes off the

electorate.

An unreasonable discriminatory restriction was placed

upon the voter by limiting his vote to only one of two

Offives to be electave by the peepie. Firrther restrietien

was placed upon political organizations denying them the

10

right to nominate a qualified candidate for all elective

offices.

Appellant submits that these restrictions placed upon

the qualified voter and political organizations is ir viola-

tion of the 14th Amendment in the United States Consti-

tution by denying to the electorate the equal protection

and due process of law.

Appellant believes that the questions presented by this

appeal are substantial and of importance, not only to the

voters of the City of New York, but to all voters -

throughout the country. This scheme of restriction on

both the electorate and political organization could be

and may be adopted by other governmental authorities to

sustain and perpetrate racial discrimin.acdon and or mis

apportionment, r

For all of the foregoing, it is respectfully submitted

that jurisdiction of this appeal should be noted and a

hearing on the merits should be granted.

Respectfully snbmitted

Harry H. Lipsic,

Attorney for Robert B. Blaikie, Appellant

Harry H. Lipsic and

Murray L. Lewis, Esqs.,

Of Counsel.

y

11

APPENDIX A

Opixnto® Courr or APPEALS

L.

————

in the Matter of Roserr B. Buaikir, individually and On

Behalf of Others Similarly Situated,

Appellant,

Vv.

James M. Power, et al., Constituting the Board of Elec-

tions uf the City of New York, et al.,

4 Respondents.

Decided{August 22, 1963

Frup, J. In this case, ifvolving #he constitutionality of

the receptly adopted New/York City Charter provision re-

lating to the election of councilmen at large, Johnson v.

City of New York (274 N. Y. 411)—which dealt with an

earlier provision of a somewhat similar charter—is dis-

positive of the issye 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 recom-

mended by the City Charter Revision Commission

be adopted ?”’

‘*Shall the system of limited voting for the elec-

tion of Councilmen-at-large, provided for in’ the

Charter proposed by the Charter Revision Commis-

sion 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 ap-

proved contained the provision here under. review—pres-

ently numbered Section 22—which provides, in sum, that the

City Council shall consist of a member to be elected from

cach senate district in the city and 10 additional council-

men at large to be elected borough-wide, two from each of

the five boroughs. In prescribing the method of election

of such couneci/men at large, the Charter limits each’roter to

vote for a single berough-wide candidaie, 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 popu-

larly as ‘‘limited voting’) was recommended after lengthy

and thoughtful study by two successive commissions in

order to make possible the election of minority represen.

tatives.'

The principal challenge to%the constitutionality of <ee-

tion 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 te

vote for a candidate of his choice for beth of the elective

offices to be filled and thereby offends against section 1

of article TT of our State ‘‘onstitution. Entitled ‘Quali

fications of Voters’’, that section reads in part in this wav:

‘Every citizen of the age of twenty-one years,

who shail have been a citizen for ninety days.

aud an inhabitant of this state for one year nex!

1 These two commissions were in the New York State Commission

on Governmental Operations of the City of New York headed by Hon-

orable Frank C. Moore as chairman (see Draft of Proposed Charter

for the Citv of New York. dated Feb. 20, 1961) and the Charter

Kevision Commission of the City of New York under the chairman-

ship of Honorable John T Cahill (see Proposed Charter for the City

of New York filed Aug. 4. 1961)

18

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 hé or she may offer his or her vote, shall

be entitled to vote 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 submitted to the vote

of the people.”’ ~

As indicated above, this Ceurt’s decision and reason-

ing in the Johnson case (274 N. Y. 411, 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 sec-

tion 22 is uneonstitutional, the court rejected them, con

cluding that proportional representation was not) pre

seribed by any constitutional provision,

In Johnsen, as here, it was urged that article I], section

1, of the Consfitution 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 offiee to he filled. A!

though his view gained the adherence of Judge Rippev

(274 N. Y. at pp. 429-40). the majority decided other-

wise, expressly holding that the purpose of the constitn-

tional provision was solely to remove the disqnalifieations

which attached to the person of the voter in earlier times

and thereby assnre to a citizen. analified by age and resi-

dence, the same right to vote as every other similarly

qualified voter possessed. In other words, section 1 of

article TT was designed not to regulate the mode of selee-

tion of elective offeers but rather to regnlate the status

of voters andl to protect otherwise qualified voters from

14

electoral discrimination. As the court put it (274%. Y.,

at pp. 418-419):

‘*No one can read the history of these changes in

the early Constitution without realizing that the

object of the change in the law made by these two

Constitutions was to remove the disqualifications

which attached to the person of the voter. Poverty

was no longer to disqualify any male citizen over

twenty-one years of age who had resided a sufficient

length of time within the State and territory where

he voted. The special class of electorate was abol-

ished and all were treated on an equality.

~* **The obvious pugpose of the article [art. II,

‘1) was to presctihe the general qualifications that

voters throughout the State were required to pos-

sess toauthorize them to vote for public officers or

upon public questions relating to general govern-

mental affairs.’ [Spitzer v. Village of Fulton, 172

N. Y. 285, 289/°" (See, also, 11 N. Y. S. Const. Con

vention Committee [1938], pp. 139-171),

Moreover, in distinguishing Matter of Hopper v. Britt

(205 N.Y. 144), the eourt observed that, whereas the pro-

visions there considered related to a ‘‘limitation placed

upon one voter whiek did not appv te another voter in the

same district’’, the preportional voting provision then be-

fore it “treats all electors alike’, and, accordingly, did not

Violate the Constitution (274 N. Y., at p. 425). And, in

voneurring with the majority, Judge Lehman, after noting

that section 1 of article I] ‘‘was drafted’’ to remove the

disqualifieations 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 in-

15

i

tended to be protected by the Constitution’’ (274 N. Y.

p. 433). ‘*Though I shares Judge Rippey’s ‘misgi

rte the possible result of the innovation”’, he said, “sul

misgivings may not blind me to the fact that the innova-

tion does not violate the spirit of any of ‘the gteat basie

principles | which are intended té he protected by the Con-

stitution and that it is possible to construe the letter of the

Constitution in manner which will confine its letter & the

parpones which it is clear that the letter Le to

cover,” f

+

“447

As is apparent from the foregoing, the question before

us is a very narrew 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 i], section 1?

The Justice at Specia! Term, thought it did; he be-

lieved that there was a difference of substance: between

the limited voting provisions of section 22vand 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’ politi-

cal 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 pro-

portional representation—demonstrates that under both

the sanctioned proportional! representation method and

the limited voting system of section 23 the elector had a

single ‘‘vote’’ regardless of the number of offices to be

filled. As provided in former chapter 43, the voter ex-

pressed. his preferences or choices on his ballot by placing

16

| ine 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’’ ($1905)

but, in providing for the counting ci the ballots, the ap-

plicable 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), and indeed, in his opinion

for the court, the Chief Judge remarked that (p. 424):

‘““The.main argument against the constitutional-

ity of this chapter has been that the proportional

voting system permits the voter to select but one

of the Councilmen [out of the many to be elected |

from his borough.’’

Judge Lehman likewise made it clear that it was ‘‘a

system_by which the votes of each voter may be counted

for only one candidate though more than one officer is to

be chosen at the election’? (274 N. Y., at p. 433). In

point of fact, it was preciseiy because the vote was so

limited that Judge Rippey coneluded, as the lone dis-

senter, that chapter 43’s proportional representation sys-

tem was unconstitutional (274 N. Y., at pp. 438:440).?

2 This is what Judge Rippey wrote (274 N. Y., at pp. 438-440:

“No matter how many offices of Councilmen have thus been created.

no elector is permitted to have his vote counted for more than «ae

candidate and that one candidate is the one on whom the counting

personnel determines his choice shall fall. * * * The practical result

of its operation is * * * the digenfranchisement of duly qualified voters

by exclusion of their right to vote and to have these votes counted for

candidates of their choice fer all offices to be filled or voted on in

these several units of representation. * * * There is no provision of »

law in this State and cannot be any such which bars a duly qualified

17

The majority opinion in Johnson reminds us-that lim-

ited voting systems almost identical in substance with

the system now under Yreview were in effect in New York

City for many years during the 19th century in connec-

tion with the election of supervisors and aldermen, the

‘predecessors of counciimen. As the court noted, ‘‘limited

or proportional voting was carried on in the City of New

York * * * for a continuous period of thirty years from

1857 to 1887°" (274 N. Y., at p. 422) and, the Court added

(p. 423), despite the fact that during those years ‘‘the

press and the bar included men of marked ability and

energy, with a willingness and courage to attack any

fundamental principle of municipal government which

was wrong’’ it was never declared unconstitutional.’

oe ae a me a ree oe Co

voter from casting his ballot for his candidate for every office for which

voting is permissible within his election district. And yet this law

says that he can vote for one Councilman and for one only although

there may he, under the terms of the act, if he resides in Brooklyn, at

least as many as twelve Councilmen to be electéd, or if he resides in

Manhattan at least as many as nine and all such offices available for

his vote within the election district within which he° resides.” Under

chapter 43, no matter how many offices of Councilmen may be created

by the voters in any particular unit of representation, the ballot of the

elector can be counted for only one candidate for one office. No mat-

ter how many choices. he may indicate on his ballot, his vote will

count, if it counts at all, for only one choice.” (Emphasis supplied. )

* Although it may not be of operative significance, it is of some

interest that an attempt was made in the Constitutional Convention of

\ 1938 to override the court's decision in Johnson and to have the Con-

stitution amended to reflect Judge Rippey’s dissenting view (see 4 Re-

vised Record of Const. Convention of State of N. Y., pp. 3225-3240).

The proposal was submitted to the voters and fejected by them (see

McKinney's Cons. Laws of N. Y., Book 2, Part I, Constitution, p.

178). Aimed at prohibiting “any system of proportional representa-

tion” the proposed amendment would have provided, in a new section

9, that “Every voter shall be entitled-to vote at each and every election

in this State or any of its subdivisions for as many persons as there

may be offices to be filled thereat”,

18

In the context of the constitutional provision (art. I,

§1), limited voting and proportional representation are in

substance and effect identical. Limited voting is much

less complex and will probably have different consequences

but each system necessarily involves a limitation of vot-

ing, imposed on all voters alike, in order to make pos-

sible of achievement some minority representation in a

multiple body. Consequently, based on our decision in

‘the Johnson case, it is clear that section 22 of the Charter

does not offend against our Constitution.‘

Nor is there any basis for the petitioner's further con-

tention that it violates the Fourteenth Amendment of the

Federal Constitution. In our view, nothing said in Gray

v. Sanders (372 U. S. 268), and certainly nothing there

decided, has any hearing on the case before us.

The repeated efforts of New York City extending over

the last century, to provide some form of minority repre-

sentation in the machinery of local government is evidence

of the widespread feeling that such representation can

play an important role in a democracy. Indeed, in the

Johnson ease, the court characterized it as ‘‘an attempt

to make representative government a reality’’ (274 N. Y.,

at p. 430). Be that as it may, New York’s latest experi-

ment in limited voting, approved by its inhabitants, is one

which the Constitntion permits it to make.

The order appealed from should be affirmed, without

costs. "

Burke, J. (concurring) I concur with Judge Fuld but

would add, as the Corporation Corfnsel so well stated,

that ‘“‘even if it were assumed that Article IT, Section 1,

4In the view here expressed, it is unnecessary to consider whether

the Home Rule Amendment (N. Y. Const., art. IX, §§9, 12 qualifies

article II, section 1, with respect to local office.

Zs

, 9

does bar a system of limited voting, the system prescribed

in the New York City Charter would not be affected be-

cause the constitutional provision is limited in its ap-

plication to elections involving state officers or state is-

sues.’’ (Spitzer v. Village of Fulton, 172 N. Y. 285, 289,

cited with approval in Johnson v. City of New York. 274

N. Y. 411, 419).

Section 1 of article II must be read together with see-

tions 9 and 12 of article IX. When so read it is manifest

that ‘‘to hold What the ‘mode of selection’ must conform

to any ‘mode of selection’ elsewhere prescribed in the

Constitution would utterly. defeat the [purpose of the]

Home Rule Amendment.’ (Bareham vy. City of Rochester,

246 N. Y. 140, 145, 146, 149). “If * * * Section 1 of Ar-

ticle II of the Constitution bars limited voting, the mode

of selection adopted by [the people of the City of New

York under the] Home Rule Amendinent must prevail.’’

Chief Judge Desmond (dissenting). The question on

this appeal is as to the validity of an amendment to sec-

tion 22 of the New York City Charter which. amendment

provides for ten additional members of the, City Counsel,

two to be elected at large from each of the five boroughs

of the city. The nominating and voting formula found

in the new enactment is most unusual in that, although |

there are two councilmen to bevelected at large from

each borough, no citizen may vote for more than one.

candidate and no political party may.nominate more than

one candidate. The necessary and intended result is that

in each borough one of the newly created councilmanic

offices is to be filled by a candidate who has gotten a

majority vote but the other new councilman in the same

borough will gain office by a minority vote only.

: Section 1 of article. II of the New York Constitution

as it is now and has fWen since 1826 states the flat prop-

fu

20

osition that every citizen with the specified age and

residence qualifications ‘‘sha!l be entitled to vote * * *

in the election district of which he or she shall at the

time be a resident * * * for all officers that now are or

hereafter may be elective by the people’’. The guaran-

tee of the right to vote for ‘‘all officers * * * elective by

the people’? is so plainly and positively articulated

(whatever its original purpose, see Johnson vy. City of

New York, 274 N. Y. 411, 482) as met. to need or allow

Bustruction or interpretation OSeftie vo Van Ervea, 49

N. Y. 280). No refined reasoning can make it mean the

opposite of what it says.

The Charter amendment we are examining was adopted

in 1961 by referendum vote so as to add ten more (two

from each borough) to the existing number of members

of the City Council. A voter is, however, not to be per-

mitted to cast his vote for the two candidates he prefers

for the two newly added offices in his borough. The new

Charter provision allows him to vote for one only of the

candidates, although there are two such new offices in

each borough. A further provision of the Charter amend-

ment directs that of the candidates nominated by any one

political party (or independerit body) for these new bor-

ough-wide councilmanie offices. no more than one shall

he elected. In other words: ne voter can vote for more

than one and no political group can elect more than one.

Result: of the ten new councilmen no more than five can

be the nominees o. anv one party. Another result would

be that of several «.inority parties represented on the

ballots in a borough, one only such minority group could

elect, a councilman and other minorities, although pro-

ducing nearly as many votes, could have none.

Appropriate legislative representation for minorities

is a desirable objective but in a government of laws a

worthy end eamtot validate unconstitutional means or

21

change the Constitntion’s meaning ‘‘beeanse the enlarged

construction would be desirable or convenient’’ (People

ex rel. Williams vy. Dayton, 55 N. Y. 367, 379). Sinee

the Charter amendment prevents a citizen from voting

for all the offices being contested for in his voting dis-

trict, it violates section 1 of article 11 of the State Con-

stitution and is a complete nullity, totally unenforcible.

We find no decision which would be a precedent for

so construing the Constitutica as to validate this statu-

tory amendment. The closest case is, of course, Johnson

v. City of New York (274°N. Y. 411, supra), holding valid

the proportional representation system of choosing city

legislators. It was found possible to hold the plan not

to be violative of the constitutional mandate that every

citizen must be allowed to vote for every elective officer.

In « sense, under proportional representation the voter

did o¥ could express a choice for al! the council member-

ships to be filled since he could state on his ballot his

first, second, third choice, etc. Anyhow, the proportional

representation system is entirely different,from the one

proposed heve and the Johnson case cannot be read as

setting up some new broad nonequality principle in op-

position to the Constitution itself.

The Appellate Division, in holding the amendment to

be valid under the State Constitution, did nut dea! di-

rectly with section 1 of article IL (sapra) apparently

being of the opinion that this section has no impact on

‘‘limited voting’’ in loeal elections. The Appellate Divi-

sion took the position (seemingly rejected in Johnson at

page 431 of 274 N. Y.) that under section 12 of article

IX of the Constitution (home rule) the city, being ex-

pressly given power to enact local laws in respect to the

‘mode of selection’? of its officers, can ignore the guar-

antee or sectiog | of article IT that each voter must be

allowed to vote for all elective officers. In this connec-

tion the court cited Bareham vy. City of Rochester (246

N. Y. 140, 146) and Spitzer v. Village of Fulton (172

N. Y. 285, 289), but we find nothing in those decisions

authorizing a system of local elections in direct opposi-

tion to the fundamental command (see Matter of Hopper

v. Britt, 202 N. Y. 144, 151) of section 1 of artiele IL

‘*Mode of selection’? cannot be stretched so far.

The Appellate Division did add a statement that the

Johnson **Proportional representation’? case (274 N. Y.

411, supra), justified the amendment we are considering.

As explained above, we do not agree.

Beyond all this there is a real question as to whether

this Charter amendment conflicts with the Fourteenth

Amendment to the United States Constitution and the

concept of political equality of voters so strongly as-

serted in Gray ¥. Sanders (372 U. S. 368, 380, 381, 382),

with its insistence on ‘tone voter, one vote’’.

We agree with Special Term. The order of the Appel-

late Division should be reversed and the Special Term

order reinstated, without costs.

Judges Van Voorhis, Scileppi and Gibson* conenr swith

Judge Fuld: Judge Burke concurs in a separate memo-

randum; Chief Judge Desmond dissents and votes to re-

verse and to reinstate the order of Special Term in an

opinion in which Judge Dye concurs.

Order affirmed.

* Designated pursuant to section 2 of article VI of the State Con-

stitution in the temporary absence of Judge Foster.

4

23

APPENDIX B

Seetion 22 of the New York City Charter reads as fol-

lows:

‘‘Composition of council—a. The Council shall con-

sist of the president of the council and of other members

termed councilmen.

b. One councilman shall be elected from each senate

district as now or hereafter constituted lying wholly or

partly within the city, and two councilmen shall be elected

at large from each of the boroughs.

ce. No party or independent body as defined in the elec-

tion law shall nominate more than one candidate for ecoun-

cilman to be elected at large in any borough.

d. Each elector shall have the right to vote for not

more than one candidate at large and the two candidates

receiving the largest number of votes in each borough

shall be elected.

e. The first election of councilmen at large shall be

held at the general election in the year nineteen hundred

sixty-three and the terms of councilmen so elected shal!

expire coterminously with those of the councilmen then

in office.”*

jj

24

APPENDIX C

Report Charter Revision Commission of July 20, 1961:

“TL. The Council—To be the sole legislative body of

the city to consist of a president elected city-wide and a

member elected from each senate district, as at present,

with the addition of 10 councilmen to be elected borough-

wide, two in each borough. The election of such borough-

wide councilmen may be by a system limiting each voter

to vote for a single borough-wide candidate, thus making

possible the election of minority representatives. The

proposal for limited voting will be submitted to the voters

as a separate proposition.’’

Report of Commission of August 4, 1961 which states

in part:

‘‘The proposal for minority representation through lim-

ited voting will be submitted as a separate proposition,

as originally announced, but it will contain a further pro-

vision that a party or independent body may nominate

only one candidate for Councilman-at-Large in each bor-

ough’’.