124 Misc. 628 | N.Y. Sup. Ct. | 1924
This is an application, in which William P. Brennan joins, for a peremptory writ of mandamus to compel the' Erie county board of election commissioners to print the names of Gilfillan and Brennan as candidates for the office of justice of the Supreme Court, in the line of the so-called Progressive party on the voting machine at the coming election.
There is no dispute about the facts, The Progressive party has
In Matter of Hopper v. Britt (203 N. Y. 144) our Court of Appeals held to be unconstitutional a statute providing that, where a candidate was nominated for an office by two or more parties, his name could be printed only in one column. This decision and the decisions in the other cases above cited were put upon the broad ground that a voter wishing to vote for any candidate should have, so far as the law could give it to him, as easy access to the means of registering his choice as other voters had for a like purpose. The section now under consideration was so drawn as to respect the decisions above cited, so far as parties and party columns are concerned, but discriminates against independent bodies. In other respects, the law recognizes that independent bodies have as good right as political parties to organize and to nominate candidates. Independent bodies are political parties in the making. They cannot become parties until they have cast 25,000 votes for Governor. But, while in the process of becoming parties, independent bodies and the voters who adhere to them ought to have the same opportunity to register their choice that any other voter has.
In the present case, suppose a voter wished to vote generally the Progressive ticket, and to vote in particular for Gilfillan for justice. He will look through the Progressive line to the end without finding the name of its candidate for justice. - The place where it ought to be is blank and locked. No provision is made by section 249 of the Election Law (as formerly) for a reference to be printed in the space advising the voter where he can find Gilfillan’s name for the purpose of voting for him. The only way he can find it is to go over the face of the machine and find Gilfillan’s name printed in a party
The names of Gilfillan and Brennan should be printed in the Progressive row, and a peremptory writ of mandamus may enter to that end.
Application granted.