dissents in a memorandum as follows: I dissent from the decision of the majority because the record before us is inadequate to support a conclusion that Election Law § 6-136 (2) (b) is unconstitutional. The majority determines that Lee Holzman should remain on the ballot as a candidate for *46Surrogate of Bronx County, that Lorraine Backal should be added to the ballot, and that the case of Hansel McGee should be remanded to give the Holzman respondents an opportunity to establish sufficient fraud to reduce the McGee signatures to less than 2,000. I believe that only Holzman has met the requirements of the Election Law to be on the ballot. Moreover, if Election Law § 6-136 (2) (b) is held unconstitutional, there is no adequate basis for ordering Backal added to the ballot while remanding the McGee case for further proceedings.
The majority concludes that Election Law § 6-136 (2) (b) is unconstitutional because it requires a candidate for Surrogate of Bronx County to obtain 5,000 signatures while requiring a candidate for Surrogate in counties with a greater population than The Bronx to obtain only 2,000 signatures. This issue was not argued in the trial court and no testimony was heard on it.
In Gjersten v Board of Election Commrs. (791 F2d 472 [7th Cir 1986]), the Court of Appeals affirmed a holding by a District Court that an Illinois statute requiring candidates for the office of ward committeeperson in Chicago to submit a nominating petition containing the signatures of 10% of the electors in the ward, while requiring candidates for the office of township committeeperson to obtain the signatures of only 5% of the electors in the township, was a denial of the equal protection of the law under the Federal Constitution. The Seventh Circuit upheld the District Court’s injunction against the use of the 10% requirement but reversed the determination to conduct special elections and remanded the case for further proceedings.
In the Gjersten case (supra), the Court of Appeals had an adequate record on which to make a determination. Referring to the proceedings in the District Court, the Seventh Circuit stated (supra, at 477), "Rather, its opinion reflects a careful analysis of the pleadings, the statute, the affidavits, the evidence of the statute’s effect in past elections and the evidence presented during a two-hour hearing on the motion for a preliminary injunction.” In this case, the only constitutional issue argued before the trial court was the inequity of forcing candidates for Surrogate to obtain 5,000 signatures within 15 days (the time remaining to gather signatures after the Court of Appeals determined that the former Surrogate of Bronx County should be removed from office) while other candidates had 37 days. Thus, unlike Gjersten, the issue of the difference in the required signatures in New York City and other coun*47ties was not addressed in the pleadings or affidavits, there was no evidence of the effect of Election Law § 6-136 (2) (b) on past elections and there was no two-hour presentation of evidence prior to the imposition of a temporary injunction.
The inadvisability of declaring the section unconstitutional without an adequate record is highlighted by an argument in the brief of the Attorney-General, submitted after oral arguments. In it he asserts that the difference between the number of signatures required within New York City and elsewhere is due, in part, to the burden of securing signatures outside of the City of New York. He goes on to cite several differences in the population density within and outside of New York City. These differences include the following:
Bronx County: A population of 1,168,972 persons, 42 square miles and a population density of 27,832.7 persons per square mile.
Richmond County: A population of 352,121 persons, 59 square miles and a population density of 5,968.2 persons per square mile.
Suffolk County: A population of 1,284,231 persons, 912 square miles and a population density of 1,408.1 persons per square mile.
Broome County: A population of 213,648 persons, 712 square miles and a population density of 300.1 persons per square mile.
If section 6-136 (2) (b) is being attacked as constitutionally invalid, the Attorney-General and the Holzman respondents should be given an opportunity to develop their contention that the differences in the number of signatures required on nominating petitions are reasonable.
The fact that Election Law § 6-136 is a reasonable determination by the Legislature as to when a candidate has made a showing sufficient to be placed on the ballot is a further argument against ruling the section unconstitutional without an adequate record. Section 6-136 (2) (b), which requires a candidate for any office which is to be filled by all of the voters of any county or borough within the City of New York to obtain 5,000 signatures, is but a part of a larger design by which the Legislature has determined the number of signatures needed to qualify for the ballot in all elections in the State. That design should not be overturned or disturbed on a record which is virtually nonexistent.
The majority’s conclusion that section 6-136 violates the *48one-person, one-vote rule enunciated in Gray v Sanders (372 US 368, 381 [1963]) is appealing. But that rule should not be used to replace a thorough examination of the system for placing a candidate’s name on the ballot, an examination which has not taken place here.
Secondly, the majority orders the name of Lorraine Backal added to the ballot but directs a remand of the McGee case to see if fraud can be established. There is no justification for the difference in treatment. In both the Backal and McGee cases the Board of Elections made a determination of the numbér of valid signatures. In the Backal case the Referee and the Judge reviewed the figure of the Board of Elections and adjusted it according to the evidence. In the McGee case the Referee heard some evidence concerning the fraud charges but made no finding because he determined that the application by the Holzman respondents to invalidate McGee’s petitions was moot once McGee conceded that he could not reach the 5,000 figure.
Specifically, following the filing of the McGee petitions, the Board of Elections made the following determination:
Total number of signatures in petition 11,690
Total number of invalid signatures 7,104
Total number of valid signatures 4,586.
The Holzman respondents contend that the 4,586 figure in the McGee case should be reduced even further because of fraud. Despite this contention, only one person, Maria Ramos, testified on August 13, 1987 as a witness on the fraud claim. The only other witness actually available to testify, according to the record, was a process server who, several days prior to August 13, was to give evidence about the difficulties in subpoenaing the persons who obtained the signatures on the McGee petitions. While the Holzman respondents contend that they were ready to continue on their fraud claim on August 13 and could have presented evidence to reduce the number of 4,586 valid signatures found by the Board of Elections, the scanty record presented here (without the testimony before the Referee or the arguments of the attorneys before the Referee or court) indicates that the Referee closed the hearing only after the testimony of the only witness in court on the fraud claim. The present record does not reveal the names of any other witnesses on the fraud claim or what their testimony would be. There is also no showing that fraud would eliminate over 2,500 of the 4,586 signatures. Given these facts, this court can make its own determination of the *49number of valid signatures presented by McGee based upon the 4,586 figure determined to be valid by the Board of Elections, the Referee’s determination that when McGee rested, he had failed to meet the 5,000 burden by 284 signatures and any reduction resulting from the testimony of Maria Ramos (a maximum of 81 signatures determined to be valid by the Board of Elections).
In summary, I would affirm the determinations that both McGee and Backal should be stricken from the ballot. If the determinations are reversed, however, both Backal and McGee should be added to the ballot without any remand.