Battista v. Power

Per Curiam. The issue presented on this appeal concerns the form of the ballot as it will be presented to the voters in the City of New York on Election Day, November 2, 1965. As the ballot is now constituted pursuant to the decision of Special Term it consists of seven columns, lettered A to G-, inclusive. Four of these columns are allotted to political parties, three to political bodies, as those terms are used in section 248 of the Election Law. The Lindsay candidates (other than those for local offices) appear in the columns of the Republican and Liberal parties, the Beame candidates in that of the Democratic party, the Buckley candidates in that of the Conservative party. The fifth column, Column E, was allotted by Special Term to the Beame candidates as representing the Civil Service Fusion party, a political body, Column F to the Battista candidates as representing the United Tax Payers party, also a political body, and Column G- to the candidates of other bodies (two in number). Prior to Special Term’s decision, Column E was allotted to the Independent Citizens party, a political body (Lindsay); Column F to the candidates of the Civil Service Fusion party (Beame); and Column G- to the candidates of the remaining bodies, including the Battista ticket. Special Term made the changes indicated on the reasoning that section 248 of the Election Law provides that if a candidate is the nominee of two or more political parties he is not entitled to a separate line or column for being the candidate of a political body. Lindsay being the candidate of two parties was therefore precluded from an additional line. The line thus vacated was awarded to the Battista ticket as the political body having the greatest number of signatures of the three bodies not already disposed of. Previously the Board of Elections had taken Column F from Battista and awarded it to Beame on the theory that the nominee of but one political party is entitled to a column for an additional nomination by a political body. It is on Battista’s application to have his column restored that this proceeding was initiated. While we agree that the directions of section 248 are as indicated in the decision below, a literal following of the statute is not required where to do so would work an inequity to any candidate or tend to interfere with a free choice by the electorate (Matter of Belford v. Board of Elections of Nassau County, 306 N. Y. 70). In the Belford case one candidate who appeared as [64] the nominee of three political parties was allowed over objection an additional line as the candidate of a political body because the signatures on the petition of the political body indicated that a substantial portion of the electorate chose to support him under that designation. Decisions upholding the strict wording of the statute have been careful to point out that under the facts there presented no inequity could result (see Matter of Lazer v. McNab, 19 A D 2d 830, 831, affd. 13 N Y 2d 935). In fact the duty of the court pursuant to section 330 of the Election Law is to resolve questions where possible in a way that allows a fair ballot to be submitted to the electorate, having due regard to the situation presented. Considerable exercise of discretion has been approved in this regard (Matter of Lazer v. McNab, supra). With these considerations in view, we turn to an examination of the equities. It appears that the original allocation of the Board of Elections in September gave Column E to the Independent Citizens party (Lindsay). That body presented a petition of nearly 49,000 signatures, just under the number required for a petition for Governor, and far exceeding the number found in any other petition. While the figure is not a significant percentage of the eligible voters in a mayoralty election, it nevertheless represents an extraordinary number for a petition for that office. Moreover, it appears that the candidate has conducted an extensive campaign directed to voters other than those enrolled in the Republican and Liberal parties to obtain their franchise under this Column E. It is recognized that in many instances party members wishing to vote outside their party, as well as voters not affiliated with any party, will vote for a candidate under an independent designation but not under a regular party designation. This is a predilection which should not be ignored (Matter of Smyth v. Westchester County Bd. of Elections, 198 Misc. 604). Furthermore, this application, while not dilatory, appears on the eve of election. The necessary work required to enlist a following under Column E has been done and cannot be undone. It would hardly be equitable at this late date to allow it to be used to a candidate’s disadvantage. As opposed to this consideration is the fact that the Democratic candidate appears as the candidate of a single party and is eligible for a column as the nominee of a political body if one is available. Fortuitously, a solution resolving both of these situations can be found. It appears that the voting machines can accommodate eight columns. This would mean that the Independent Citizens party could retain its column and the [65] Boaine and Battista tickets could also have their columns. The order herein so provides. Order should be modified, on the law and the facts and as a matter of discretion, to provide that the ballot contain eight columns, Columns A, B, C, D and F as at present constituted, Column E for the Independent Citizens party, Column Gr for the Civil Service Fusion party, and Column H for the candidates of other independent bodies, and, as so modified, affirmed, without costs.