Korman v. Sachs

Judgment, Supreme Court, Bronx County (Carl J. Mugglin, J.), entered on August 17, 1987, which, inter alia, confirmed the Referee’s report and denied appellant’s application to invalidate the designating petition of Lee L. Holzman as candidate for Judge of the Surrogate’s Court, Bronx County, and dismissed the proceeding, unanimously affirmed, without costs and without disbursements. Judgment, Supreme Court, Bronx County (Carl J. Mugglin, J.), entered on August 17, 1987, which, inter alia, granted the application to invalidate appellant’s designating petition as candidate for Judge of the Surrogate’s Court, Bronx County, reversed, on the law, without costs or disbursements, and the respondent Board of Elections is directed to place the name of appellant Lorraine Backal on the ballot as candidate for Judge of the Surrogate’s Court, Bronx County, in the Democratic primary election to be held September 15, 1987. The designating petition of appellant Backal, as a candidate for the office of Judge of the Surrogate’s Court of Bronx County, was invalidated by the Supreme Court, after a hearing, because the petition was found to contain less than the 5,000 valid signatures minimally required under Election Law § 6-136 (2) (b) for an office to be filled by all the voters of a county within the City of New York. Due to the unusual manner in which the office of Surrogate of Bronx County became vacant on July 2, 1987, the time period within which signatures could be obtained was reduced to some 14 Vi days rather than the 37-day period otherwise available in 1987 (see, Election Law § 6-134 [6]; § 6-158 [1]). At the conclusion of the signature-gathering period, appellant Backal filed a petition with the Board of Elections containing [42] 12,138 signatures in which 5,158 were found by the Board to be valid. Upon the subsequent hearing held in the Supreme Court in the instant proceeding to invalidate the petition additional signatures were found to be invalid resulting in a determination that the petition contained only 4,697 valid signatures. While appellant contends that the Supreme Court improperly invalidated a substantial number of signatures and that, in fact, her petition contains in excess of 5,000 valid signatures, the main thrust of this appeal is directed to a constitutional challenge to section 6-136 (2) (b) of the Election Law insofar as it requires a candidate for Surrogate of Bronx County to submit at least 5,000 valid signatures in order to qualify for the office sought. We note at the outset that we reject appellant’s arguments with respect to the propriety of the Supreme Court’s ruling as to the invalidity of particular signatures and adopt that court’s factual determination that appellant’s petition contained only 4,697 valid signatures. Our focus is directed to the constitutional challenge to the Election Law. Appellant’s constitutional argument is two-pronged. On the one hand, it is urged that requiring submission of the full minimum 5,000 signatures in light of the abbreviated time period which was here available for the collection of signatures—that is, IAV2 days rather than the usual 37 days—imposed such an unreasonable burden upon the candidates for the instant position as to constitute an unconstitutional interference with access to the ballot requiring judicial intervention to authorize a proportionately reduced minimum number of signatures. We find little merit in this argument. While Election Law § 6-116 provides for an alternative method for nomination of a candidate in the event a vacancy occurs within seven days before the last day for circulating designating petitions, it provides no alternative relief for a situation, such as here, where the vacancy arises more than seven days before the last day for circulating petitions. Instead, the statute requires full compliance with minimum signature specifications notwithstanding the reduced time availability for collecting such signatures. That such statutory scheme is not oppressive is in the instant case emphasized by the fact that over 12,000 signatures were collected for the one candidate who has successfully qualified for the office in question, that more than 12,000 signatures were collected on [43] appellant’s behalf within the available period and that almost 12.000 signatures were collected on behalf of another potential candidate who has separately appealed. There has been no showing whatsoever that the failure to obtain a minimum of 5.000 valid signatures on appellant’s behalf was in any way occasioned by the reduced time period available rather than by reason of errors in the signature-gathering process. Moreover, a similar number of signatures has been required where the statute itself sets an even more abbreviated time frame than was here available, as in the case of independent nominating petitions in a special election where the 5,000 signatures must be filed "not later than twelve days following the issuance of a proclamation of such election” (Election Law § 6-158 [9]). We find, however, that appellant’s other constitutional argument regarding the disparity of the signature requirements applicable to counties, of comparable population, within the City of New York and elsewhere in the State, is deserving of close scrutiny. There is no question that the State Legislature is empowered to regulate the conduct of elections in order to insure that they are fair and honest and that order, rather than chaos, accompanies access to the ballot, and it is recognized that a State has a legitimate interest in regulating the number of candidates on the ballot for purposes of preventing the clogging of its election machinery and avoiding voter confusion which would stem from a plethora of frivolous candidacies. (See, Stroer v Brown, 415 US 724; Jenness v Fortson, 403 US 431.) Toward that end, the State may fix reasonable standards to assure that a candidate has some level of popular support before that candidate’s name is placed on the primary ballot (Moritt v Governor of State of N. Y., 42 NY2d 347). The standards which have been enacted in this State for that purpose are set forth in Election Law § 6-136. That section governs party designating petitions and sets forth the minimum number of signatures necessary for various offices. Subdivision (2) of that section, insofar as here pertinent, provides as follows: "2. All other petitions must be signed by not less than five per centum, as determined by the preceding enrollment, of the then enrolled voters of the party residing within the political unit in which the office or position is to be voted for, provided, however, that for the following public offices the number of signatures need not exceed the following limits * * * [44] "(b) For any office to be filled by all the voters of any county or borough within the city of New York, five thousand signatures * * * "(d) For any office to be filled by all the voters of cities or counties, except the city of New York and counties therein, containing more than two hundred fifty thousand inhabitants according to the last preceding federal enumeration, two thousand signatures”. Appellant argues that requiring a candidate for a countywide office within the City of New York to submit 5,000 signatures while requiring a candidate for the identical office in a county of comparable population outside the City of New York to submit only 2,000 signatures constitutes an unconstitutional violation of the Equal Protection Clause. It is asserted, and judicial notice is taken of the fact, that there are counties outside the City of New York, such as Nassau, which have populations exceeding that of Bronx County. It is not disputed that under the statute candidates for the office of Surrogate in those counties need file only 2,000 signatures. It is clear that the statute, on its face, provides for geographically based disparity of treatment of candidates for the same office in counties of substantially equivalent population. The Legislature has determined that in counties outside the City of New York, even though the population of any such county may be equal to or greater than a county within the city, 2,000 signatures is sufficient to demonstrate that the candidate has a significant quantum of community support. Having made the determination that 2,000 signatures demonstrate the necessary community support in Nassau County, with a population of well over a million inhabitants, it is irrational to require 2 V2 times that number, or 5,000 signatures, to establish the requisite support in Bronx County, with a lesser population, merely because the latter county falls within the boundaries of the City of New York. To uphold a statutory scheme that, in effect, holds that the level of commitment to and support of a candidate manifested by the signature of a Nassau County voter has 2 V2 times the worth of that manifested by the signature of a Bronx County voter, is to ignore "one-person-one-vote” equal protection standards. Respondents argue that the record here is insufficient to make a determination as to the statute’s validity because they had no opportunity to present proof as to the distinctions between counties within and without the City of New York which would render the disparties provided for rational and, [45] while acknowledging the inability to determine the legislative history of those provisions, arguments are offered regarding the physical distinctions between rural and urban areas, population density and the like. Although it is doubtful whether Nassau County or the Cities of Buffalo, Rochester or Syracuse can be characterized as “rural”, any such arguments are, in any event, wholly irrelevant. While greater distances between the residences of voters may impact upon the ease, or lack thereof, in approaching such voters (and it is questionable whether visiting a block of individual private homes seeking signatures presents any greater difficulties than the quest to gain admittance to New York City high-rise buildings where doormen exercise fortress-like tenacity in “keeping out” petition carriers), demographic differences among the various counties of the State have no relevance whatsoever on the critical issue of what number of signatures is necessary to demonstrate that the particular candidate has substantial community support. Respondents have not made a sufficient showing that they could produce any evidence that would justify the requirement for a greater number of signatures within the City of New York, in order to demonstrate such support, than in counties of equivalent population outside the city. The geographically based disparity under our Election Law is equally as infirm as the similarly discriminatory disparate qualifying requirements imposed by the Illinois Legislature for the equivalent offices of ward committeman in Cook County and township committeeman elsewhere in Illinois. Requiring signatures of 10% of the voters in Cook County in distinction to 5% elsewhere in the State was held to be violative of the Equal Protection Clause and an unconstitutional restriction on access to the ballot. (Gjersten v Board of Election Commrs., 791 F2d 472; cf. also, Illinois Elections Bd. v Socialist Workers Party, 440 US 173.) Subdivision (2) (b) of Election Law § 6-136, to the extent it requires 5,000 signatures instead of the 2,000 provided for in paragraph (d), is similarly unconstitutional. Accordingly, under constitutional standards appellant Backal is entitled to a place on the ballot. Concur—Kassal, J. P., Ellerin and Wallach, JJ.