On this dirеct appeal, appellants in each of these cases attack the constitutionality of section 138-b of thе Election Law which provides that no candidate for an office, other than a judicial or State-wide office, shall be eligible to receive the
Aftеr receiving the nomination of the Republican Party for separate public offices
Supreme Court, Albany County, agreed and declared each of the independent petitions null and void.
We cоnclude that section 138-b is unconstitutional and, therefore, the orders appealed from should be reversed.
There can be no doubt about the authority of the Legislature to enact reasonable laws and regulations for the conduct of primary and general elections. Such laws, of course, may control the manner of preparation of the ballot, sо long as they do not prevent a qualified elector from exercising his constitutional right to vote for a candidate and party of his choice. On the other hand, it is equally also well “ settled law from the earliest period in the history of our state that [the Legislature] cannot enact arbitrary exclusions from office.” (Matter of Callahan,
The section in question provides, in part, that “ [a]ny candidate who has received and accepted the nomination of a party, for an office other than judicial or stаtewide shall not be eligible to receive the nomination of any independent group for the same
Prior to the amendment of section 248 and the enactment of section 138-b, a candidate recеiving the cross nominations of a party and an independent group would have his name appear in two separate columns or rows on the ballot, indicating his nomination by the party as well as the independent group. Where, however, a cаndidate received the nomination of two or more parties, his name would not be placed on the ballot in a seрarate row or column as the independent nominee, but, instead, the symbol or emblem of the independent group would be inсluded with his name in the row or column of one of the parties where his name already appeared.
Now, under sectiоn 138-b, a candidate receiving the nomination of a party for ati office other than judicial or State-wide, ‘ ‘ shall not be еligible to receive the nomination of any independent group for the same office for the same year.”
The appellants, as Republican Party candidates for public office, are deemed ineligible to receive and accept the nomination of an independent group, thereby preventing them from having their names listed on the ballot as nominеes of an independent group. The statute, however, does not bar their opponents in the general election, nоminees of both the Democratic and Conservative Parties, from having their names appear in two separate rows or columns for the same office. Surely, there can be no lawful or rational justification for a statute that allows onе candidate to accept the nominations from two different political groups, while at the same time denying anothеr candidate for the same office the same opportunity.
As we so prophetically stated in Callahan (
Although the respondents urge that the statute was designed to prevent the major parties from pre-empting the ballot to the . exclusion of valid independent groups, no support for this conclusion is offered. As a matter of fact, thе contrary could be inferred, considering the statute was introduced as a bipartisan measure without any explanation or comment.
Accordingly, we reverse the judgments of the Supreme Court and declare section 138-b of the Election Law uncоnstitutional as being violative of both the Federal and State Constitutions (U. S. Const., 14th Amdt.; N. Y. Const., art. I, § 11).
Chief Judge Fuld and Judges Burke, Gabrielli, Jones and Wachtler concur; Judge Breitel taking no part.
In each case: Judgment reversed, without costs, and judgment granted in favor of appellant.
Notes
. Section 2 of the Election Law defines a “party” as “any political organization which at the last preceding еlection for governor polled at least fifty thousand votes for governor."
. An “independent body” is defined as “any organization or group of voters which, by independent certificate, nominates a candidate or candidates for office to be voted for at an election at which official ballots are used, and which is not a party as herein provided.”
. Appellants are Republican candidates for the following offices:
Carl E. Touhey — Mayor of the City of Albany.
A. Lynne Graburn — Member of Albany County Legislature — 7th District.
James P. Paughnan, Jr. — Member of Albany County Legislature — 15th District.
Betty Gross — Member of the Board of Aldermen, City of Albany — 15th Ward.