# Jurisdictional Statement — Blaikie v. Power

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1964
- **Citation:** 375 U.S. 439

## Text

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’’.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0431%3A2. Public record. Not legal advice.