(dissenting). The issue here is whether a subscribing witness to a nominating petition may be denied his First Amendment rights because he struck an unconstitutional provision from the subscribing portion of the petition before he signed it. Because the deletion was consistent with and even compelled by decisions of this Court and a federal appellate court, I dissent.
This is a proceeding by Susan McGuire, the Republican and Conservative candidate for the office of Dutchess County legislator, to invalidate the independent petition nominating respondent Alison E. MacAvery as a candidate of the Senior Citizens Party for the Dutchess County Legislature. The petition claims that a subscribing witness to a number of petitions made material alterations to the witness statement. Specifically, it claims that John Bailo struck the following phrase in the witness statement: “and I am also duly qualified to sign the petition.”
Supreme Court granted the application to invalidate the petition and the Appellate Division affirmed. This Court granted leave to appeal.
The requirement of the Election Law that a subscribing witness to a nominating petition live in the district of the candidate on the nominating petition has been declared unconstitutional. Election Law § 6-132 (2) required that a subscribing witness to a designating petition be “a resident of the political subdivision *450in which the office or position is to be voted for.” In the year 2000, the United States Court of Appeals for the Second Circuit declared Election Law § 6-132 (2) unconstitutional as a severe burden on speech (Lerman v Board of Elections in City of N.Y., 232 F3d 135 [2000], cert denied 533 US 915 [2001]). In 2001, in Matter of La Brake v Dukes (96 NY2d 913 [2001]), this Court, citing the Lerman decision, also declared that requirement unconstitutional. This Court stated:
“We agree with the courts below and with the United States Court of Appeals for the Second Circuit that the circulation of designating petitions on behalf of a candidate is ‘core political speech’ . . . and that the residency requirement at issue constitutes a severe burden on such expression” (id. at 914 [citations omitted]).
Election Law § 6-140 (1) (b) requires that a witness who circulates an independent nominating petition must be “qualified to sign the petition.” It is undisputed that the subscribing witness, Bailo, does not live in the district. Thus, to swear that he is a person duly qualified to sign the petition, that is that he lives in the district, would amount to perjury. The fact that the Board of Elections or the State Legislature has not changed the form during several years after a declaration that a portion of it is unconstitutional is not an adequate reason to deny the subscribing witness his constitutional rights.
The majority argues that even though the residency requirement for subscribing to a petition has been struck as unconstitutional, the petition must be invalidated because the subscribing witness struck the language without giving a reason. The free speech right to support the candidate of one’s choice does not in any way depend upon a statement giving the reasons for striking the phrase. It has not been established on this record that Bailo was disqualified from signing the petition for any reason other than nonresidency. He did not delete from the form the statement “I am a duly qualified voter of the State of New York,” and it can hardly be seriously contended that the State had any other valid reason for interfering with the exercise of his First Amendment right. Even if such a reason did exist, it was the State’s burden to prove it, not Ballo’s to disprove it. He was within his right to strike the unconstitutional provision of the form.
*451Accordingly, I would dismiss the application to invalidate, declare the nominating petitions valid and permit the candidate’s name to appear on the ballot.
Chief Judge Kaye and Judges Ciparick, Rosenblatt and Read concur with Judge Graffeo; Judge G.B. Smith dissents and votes to reverse in a separate opinion in which Judge R.S. Smith concurs.
Order affirmed, without costs.