[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 526 The method of nominating party candidates for public office through a convention of delegates, which prevailed in this state for time out of mind, was mainly done away with by the act of the legislature now called in question and a new method of nominating by committees set up in its place. This was done by the Primary Law, so called, which is really an amendment of the Election Law (L. 1911, ch. 891). The statute now provides for the election of party committees and the selection of party candidates by the ballots of party voters cast at the primaries. The party committee is authorized to designate candidates for nomination and other candidates may be designated by petition embracing not less than five per cent of the enrolled voters of the party within the district and by not less than four per cent of the entire vote cast in the political subdivision for the party candidate for governor at the last preceding gubernatorial election, and whoever receives the greatest number of votes at the primary thereby becomes the candidate of the party. It is provided by section 57 that "The party emblem shall constitute the committee emblem of the party," and each set of petitioners, if there is more than one, may select its own emblem and if it fails to do *Page 528 so the secretary of state is required to provide one. The relators claim that all nominees presented for support at the primaries are entitled to stand on the same footing and that in making the party emblem the committee emblem of the party the legislature made an unjust and unfair discrimination.
An entire article of the statute is devoted to party organization by means of committees elected by the enrolled members of the party, including a state committee and a committee for each district where a public officer is to be elected by the voters thereof. Each committee is required to organize by the election of officers and is authorized to prepare rules for the government of the party and the conduct of official primaries within its political subdivision. It thus becomes the governing body of the party in the state or district for which it was elected. The committee represents the party because it is elected by the party voters at the primaries. It is within the power of the legislature to give it the party emblem because it represents the party and is the agency provided for the management of the party. If, however, a certain percentage of the party voters are not satisfied with the candidates designated by the committee, they may designate their own candidates by petition. Other members of the party may do the same and thus two or more sets of candidates for nomination would be presented to the party voters who make their choice by the vote of a majority. Emblems are necessary at primaries the same as at regular elections so as to enable the voter to avoid mistakes and vote intelligently. The provision in question simply gives effect to the truth, to the situation as it really exists, for the committee does not represent a faction in the party but the party itself so far as it takes action authorized by law. It is the administrative body of the party, subject only to the limitations of the statute and the rules duly adopted by the party. If the opposition elects its committees this year they will *Page 529 represent the party next year and be entitled to its emblem. The committee in power, having been chosen by the voters of the party as its agent for party purposes, necessarily represents the party as to those purposes. By an amendment made this year existing committees are continued until their successors are elected. (L. 1912, ch. 4, § 5.)
It is true that the candidates of the regular organization ordinarily have an advantage, because the majority of voters are generally in favor of the organization created by themselves, but this is an inherent and legitimate advantage which cannot be done away with. Under the present system the committee would not be the organization if a majority of the party voters had not made it the organization. The party voter has the right to know what candidates for nomination were designated by the committee, for he has the right to vote for them, or against them, simply because they are the nominees of the committee. He has the right to vote for the committee's candidates merely because the committee presented them and the emblem enables him to know whom he is voting for. In some cases the candidates of the committee instead of having an advantage might be put at disadvantage, owing to widespread dissatisfaction with the general conduct of the committee. The use of the party emblem has the same effect as if the statute had authorized the committee to place at the head of their set of candidates, "Organization Ticket," leaving petitioners to put at the head of their list of candidates "Opposition Ticket," "Anti-Organization Ticket" or something of like character to show what ticket it is. To such a method, if authorized by the legislature, we see no constitutional objection, because it would simply give the voter the information he is entitled to. The object of the Primary Law is to enable the party voter to vote for the candidates that he chooses and the emblem is simply a guide to intelligent *Page 530 choice. There is nothing to prevent him from voting for the candidate he wishes to have nominated. Every party voter can cast his ballot with the same ease and freedom that is afforded to any other voter. There is absolute equality of opportunity. There would be unfair discrimination if one set of candidates could have an emblem and the others none, but the fact that the nominees of the committee are given the party emblem because they are the official representatives of the party for the time being is not an unfair discrimination. As was said by Mr. Justice DOWLING for the Appellate Division: "The mere fact that the party committee which, until displaced, represents the majority of the party membership, is given the right to use the party emblem, is not an abuse of the legislative power."
The remaining question involves the validity of the provision that the name of a candidate shall not appear more than once on the ballot as a candidate for the same public office or party position.
It is contended on the one hand that the word "elections," as used in the Constitution, refers only to the election of public officers and not to the selection of party candidates, and, on the other, that, as electors can vote effectively only for candidates nominated by some kind of an organization, whatever interferes with ease and freedom in the selection of candidates hampers the exercise of the elective franchise.
We have held that statutory provisions "forbidding a committee of any party or independent body authorized either to make nominations or to fill vacancies to nominate a candidate of another party or independent body for the same office are plainly invalid and unconstitutional." (Matter of Callahan, 200 N.Y. 59,60.) In deciding that case the chief judge, speaking for a majority of the judges, said: "If the legislature does grant to any convention, committee or body the right to make nominations, it cannot limit the right of such convention, committee *Page 531 or body to nominate as its candidate any person who is qualified for the office. * * * If it cannot enact arbitrary exclusions from office, equally it cannot enact arbitrary exclusions from candidacy for office. What exclusion could be more arbitrary than that one party or organization should not be permitted to nominate the candidate of another?"
In Matter of Hopper v. Britt (203 N.Y. 144) we held that a statute providing that the name of a person nominated by more than one political party should be printed but once upon the ballot provided for regular elections was unconstitutional to that extent, because it made an unjust discrimination between voters in the facility afforded them in casting their ballots for the candidates of their choice.
In Matter of Burke v. Terry (203 N.Y. 293) it was held that the rule of "equality of opportunity so far as practicable" applies "to the right to participate in making independent nominations."
Freedom in voting is guaranteed by the Constitution. The right to vote carries with it the right to nominate candidates to be voted for so that voting may become effective through co-operation. Any statute which restrains freedom in nominating candidates at the primary, restrains freedom in voting for candidates at the regular elections. Some restrictions may be necessary in order to so regulate the right as to properly protect it, but any unnecessary or unreasonable restraint is in conflict with the Constitution, not because that instrument refers to primary elections, but because statutory provisions relating to primary elections, when they restrain freedom in nominating, also restrain freedom in voting. The provision in question prevents voters belonging to one organization from nominating as their candidate one who has already been nominated by another organization. This compels them to leave blank the space provided in their ticket or column for that position, and thus *Page 532 the voter in order to vote for that candidate is obliged to search for it in another ticket or column and make the additional marks necessary, which leads to confusion, and tends to frustrate the intention of the voter to vote for all the candidates of his organization. Whatever gives one class of voters, either at an election or a primary, an undue advantage over any other class, tampers with a constitutional right. If the voters who support candidate A stand a better chance to nominate him than those who support candidate B have to select him, the rights of the latter are unlawfully interfered with. Such is the situation created by the provision in question, which we regard as an unreasonable restriction upon freedom in voting and, according to the principles established by our decisions, a violation of the fundamental law.
The order appealed from should be affirmed, without costs.