The people of the city of New York, at the general election in 1936, declared by their votes on the question submitted that they wanted proportional representation in the election of Councilmen. This was chapter 43 of the proposed new charter also approved at said election. This declared will of the people has been challenged as unconstitutional, and so decided by a Special Term of the Supreme Court held in Kings county. A Special Term held in New York county has declared it constitutional.
The proposition before us may be stated in the following way:
Assuming that the borough of Brooklyn is entitled to twelve Councilmen, it is conceded by everybody that the
borough could be divided into twelve districts, and one Councilman elected from each district. This would give Brooklyn twelve representatives in the Council, and yet the people of Brooklyn had only voted for one out of the twelve. This is said to be legal, and this is the method insisted upon by the opponents of proportional voting. Remove the artificial lines creating the districts, and give Brooklyn the same twelve men in the Council, it is said to be illegal if the people can only vote for one of the twelve. What is the magic in these artificial lines that creates such a difference in result with little or no difference in principle? If the borough be divided into districts the people can only vote for one of the twelve; if the district lines be removed they cannot vote for one of the twelve but must vote for all twelve. The only reason pressed upon us for this artificial distinction is that the Constitution says it must be, and this is final. I can find no such command in the State Constitution, and the authorities, so far as the matter has come into court, and the practice in electing Supervisors and Aldermen, the predecessors of Councilmen, in New York city for over thirty years, has been to the contrary.
The State Constitution of 1821 did not give free and universal suffrage; neither did the laws preceding this Constitution. There were property qualifications entitling one to vote. This Constitution of 1821 reluctantly let go of this property qualification, as can be readily seen from the record of the debates. The voter was qualified if he had paid a tax assessed upon real or personal property or was exempted by law or had performed military duty or had been assessed to labor upon the public highways, and had performed such labor. Such an one was entitled to vote in the town or ward where he actually resided for all officers "that now are, or hereafter may be, elective by the people."
These restrictions upon voting are to be found in article II, section 1, of the Constitution of 1821.
The Constitution of 1826 amended this article and section by removing completely all disqualification of voters. The qualifications of being a taxpayer or of rendering public service were removed, the amended section reading as follows: "Every male citizen of the age of twenty-one years, who shall have been an inhabitant of this State one year next preceding any election, and for the last six months a resident of the county where he may offer his vote, shall be entitled to vote in the town or ward where he actually resides, and not elsewhere, for all officers that now are or hereafter may be elective by the people."
No one can read the history of these changes in the early Constitution without realizing that the object of the change in the law made by these two Constitutions was to remove the disqualifications which attached to the person of the voter. Poverty was no longer to disqualify any male citizen over twenty-one years of age who had resided a sufficient length of time within the State and territory where he voted. The special class of electorate was abolished and all were treated on an equality.
This amendment of the Constitution of 1826 remains in the present Constitution of the State, with a few minor changes, as follows: In the Constitution of 1846 the words "shall be entitled to vote in the town or ward where he actually resides" were changed to "shall be entitled to vote at such election in the election-district of which he shall at the time be a resident." I may add that the amendments to the Constitution of 1864 and 1874 made no changes in these qualifications. The present Constitution embodies all these changes but adds nothing and takes nothing away from the Constitution of 1826 upon the point which we are considering. It reads:
Art. II, § 1: "Every citizen of the age of twenty-one years, who shall have been a citizen for ninety days, and an inhabitant of this State one year next preceding an election, and for the last four months a resident of the
county and for the last thirty days a resident of the election district in which he or she may offer his or her vote, shall be entitled to vote at such election in the election district of which he or she shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people, and upon all questions which may be submitted to the vote of the people * * *."
So much for the Constitution. The early laws relating to elections, so far as pertinent here, may be referred to. Chapter 61, Laws of 1801, provided: "That all elections for governor, lieutenant governor, senators and members of assembly shall be by ballot, and that such elections shall be held in the cities of New York, Albany, and Schenectady by wards, and in all other parts of this State by towns * * *." This method of voting was changed by the Laws of 1842, chapter 130, title II, section 12: "The elections in the several cities and towns shall be by election districts." This preceded the change that the voter must live in his election district, made by the Constitution of 1846.
These various provisions of the Constitution were before this court in Spitzer v. Village of Fulton (172 N.Y. 285), where property qualifications were placed upon the right of a voter to vote upon a proposition to establish a system of water works at village expense. The contention was that the statute placing upon the voters these restrictions was unconstitutional because it was in conflict with the provisions of section 1 of article II of the State Constitution, which is quoted above. This court said: "The obvious purpose of that article was to prescribe the general qualifications that voters throughout the State were required to possess to authorize them to vote for public officers or upon public questions relating to general governmental affairs. But we are of the opinion that that article was not intended to define the qualifications of voters upon questions relating to the financial interests
or private affairs of the various cities or incorporated villages of the State, especially when, as in this case, it relates to borrowing money or contracting debts. This becomes manifest when we also consider section 1 of article 12 of the Constitution which provides: `It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments, and in contracting debt by such municipal corporations.' Article two must be construed in connection with article twelve. When read together, we have two provisions of the Constitution which relate to this question. The first was intended merely to define the general qualifications of voters for elective officers or upon questions which may be submitted to the vote of the people which affect the public affairs of the state; the second, a provision by which it is made the duty of the legislature to protect the taxpayers of every city and village in the state and to restrict their power of taxation, assessment, borrowing money and contracting debts, so as to prevent any abuse thereby. One is general, relating to the whole state. The other is in effect local, relating only to the cities and villages of the state. One relates only to the general governmental affairs of the state. The other relates to the business or private affairs of the municipalities specified" (p. 289).
A similar question arose in People ex rel. Furman v. Clute
(50 N.Y. 451). FOLGER, J., in his opinion said: "The legislature may not put upon any elector a personal restriction from voting for any officer who may be elective, or whom it may declare elective, save such restriction as is imposed by the Constitution, for from that it is especially prohibited. But it may, in the exercise of its judgment for the public good, limitthe number from whom the elector may select, for thus to legislate is within the general and sovereign power of legislation, which it constitutionally
possesses" (p. 459). (See, also, Lincoln, Constitutional History of New York, vol. 1, pp. 640-652; Dougherty, Constitutional History of New York State, pp. 93-96; Rogers v. Common Councilof Buffalo, 123 N.Y. 173.)
Minority representation by voting has not been unknown in the history of elective franchise in the State of New York. Chapter 590 of the Laws of 1857, relating to the selection of Supervisors of New York county, established a board of twelve members, each elector voting for six. The six receiving the highest number of votes were to be declared elected. The statute then provided that the Mayor must appoint the six receiving the next highest number of votes as to the other members of the board. This system, slightly modified by chapter 321 of the Laws of 1858, continued in force until 1874. Limited voting was, in fact, applied to inspectors of election in cities and towns as early as 1842. An act of that year provided for three inspectors in each election district. Each voter was permitted to vote for two, and the two highest were to be declared elected. The third inspector was to be appointed by the officers presiding at the town meeting or charter election from the two candidates receiving the next highest number of votes. (Laws of 1842, ch. 130, tit. III, art. third, § 21.) This system persisted in towns and certain cities until 1881. (Laws of 1881, ch. 137.) By chapter 335 of the Laws of 1873 there was created for the city of New York a board of twenty-one Aldermen, six to be elected at large, of whom each elector might vote for four; and fifteen elected, three from each of five districts, each voter being limited to vote for two out of three from his district.
This system was amended by chapter 757 of the Laws of 1873, and continued as amended. It was further amended by chapter 515 of the Laws of 1874, which increased the number of Aldermen to twenty-two, one district being given four Aldermen instead of three, each
voter being limited to a vote for three out of the four, the other provisions remaining unchanged.
The system was again amended by chapter 400 of the Laws of 1878, section 1, which continued the number of Aldermen at twenty-two, but divided the district which had theretofore elected four Aldermen into two districts, one of which was to elect three Aldermen, each voter being limited to voting for two, and the remaining portion of the district being made a single member district.
In 1881 the Commissioners appointed to revise the charter of the city of New York carried this same system of limited voting for Aldermen into their draft of the Consolidation Act, and the same provision appeared in the Consolidation Act (Laws of 1882, ch. 410, § 29) and continued in force until abolished by chapter 292 of the Laws of 1887.
Thus limited or proportional voting was carried on in the city of New York, first for supervisors and then for Aldermen, for a continuous period of thirty years from 1857 to 1887.
The Board of Supervisors for the city of New York was abolished in 1874 and the Board of Aldermen established. (Laws of 1874, ch. 304.)
This system of voting for Aldermen in the city of New York was brought to the attention of this court in People ex rel.Angerstein v. Kenney (96 N.Y. 294). Judge EARL wrote the opinion. He stated: "Under that article [section 1 of article II of the State Constitution] it is insisted that the system of minority election, as embodied in the act of 1873, was unconstitutional, and that at every election every voter had the right to vote for every officer to be chosen from the city at large, or from the district in which he resided." (p. 300). Although the action was brought by the Attorney-General of the State for the purpose of settling this question, the point was not decided, as the terms of office for all the candidates interested had expired. Therefore, Judge EARL said: "The constitutional question which the plaintiffs sought
to raise by the commencement of this action is a very grave and interesting one, and should not be decided in any case unless it is properly presented, and necessarily involved. It need not be decided in this case" (p. 302). Besides, said the judge, and the court followed him, it did not appear that any voter objected and insisted upon voting for others than he did vote for. In other words, the question was presented and not decided, and that is all there is to the Kenney case.
The fact remains, nevertheless, that for thirty years the system of minority representation prevailed in the Board of Aldermen of the city of New York and was never declared unconstitutional. During these years the press and the bar included men of marked ability and energy, with a willingness and courage to attack any fundamental principle of municipal government which was wrong. We can hardly imagine that article II, section 1, of the Constitution forbade the election of aldermen of the city of New York under a minority representative system, and that the people for all these years slept upon their rights.
Matter of Hopper v. Britt (203 N.Y. 144), from which the briefs have copied so copiously, has no bearing upon this point we are now considering as it related to a limitation placed upon one voter which did not apply to another voter in the same district. Where all the voters had a right to vote for certain candidates the Legislature had made it difficult for those who wanted to vote for one candidate and easy for those who desired to vote for another. Chapter 43 of the charter, relating to the proportional voting, treats all electors alike, and does not prevent a man from voting for the candidate of his choice.
People ex rel. Goring v. President of Vil. of WappingersFalls (144 N.Y. 616) likewise has no application, as, under section 1005, subdivisions 3 and 4, of chapter 43 of the present charter, a blank place is left upon the ballots, wherein any voter may write the name of any person he desires to vote for. He is not bound to vote simply for those who have been nominated.
To me it seems evident from what I have quoted that article II, section 1, does not prevent a system of minority representation or proportional voting such as is here presented. Reason likewise points out that if the law permits a borough to be divided into districts, and the people of the borough thus forced to vote for only one Councilman in each district, it is equally permissible to elect the same number from the entire borough, each voter selecting but one.
The main argument against the constitutionality of this chapter has been that the proportional voting system permits the voter to select but one of the Councilmen from his borough. This is emphasized in all the briefs and in all the arguments. For this reason I have taken up this question at the beginning.
The other objections which have been presented have to do with the manner of voting and of counting the ballots. In a word, the system is described as one in which nominations for Councilmen may be made on the petition of two thousand electors. These are listed, and the voter on election day may vote for any of them or a person of his own choice, but, instead of making his mark as is now the practice, he places figures before the name of his choice, beginning with one and running up to as many as he wants to vote for. The numerical order represents his preference. Anybody getting first preference to the amount of seventy-five thousand is considered elected, and the votes for that person thereafter are given to the second choice on that ballot. It may be well to give the whole matter more in detail:
Chapter 867 of the Laws of 1934, as amended by chapter 292 of the Laws of 1935, provides for a New York City Charter Revision Commission. Section 5 of that act provides for the submission to the people of the question whether the proposed charter shall be adopted. It further provides that no provision in said charter for the election of any elective officers by any system of proportional
representation shall become effective unless the definite question with respect to the adoption of such system for the election of such officers shall have been separately submitted and approved by the affirmative vote of a majority of the electors. If such question is so approved, then such system of proportional representation shall be and become effective.
At the general election of 1936 the proposed New York charter was submitted to the people and adopted by them. Chapter 43, providing for the election of Councilmen by the system of proportional representation, was submitted to the voters as a separate question, and was likewise adopted.
Section 22-a of the new charter provides: "The council shall consist of the president of the council and of other members termed councilmen." In section 22-b it is provided that Councilmen shall be elected one from each of the Senate districts lying wholly within the city, plus a specified number at large from each of the named boroughs. In section 1001, which is a part of chapter 43, provision is made that if chapter 43 is approved by the electors when the question is submitted to them, then subdivision "b" of section 22 shall have no effect. As stated above, the election of Councilmen by the system of proportional representation, as outlined in chapter 43, was approved by the electors, and thus by the terms of the charter section 22-b is of no effect and chapter 43 governs the election of Councilmen.
Chapter 43 of the new charter provides: Councilmen shall be elected by the system of proportional representation provided for in that chapter, from each borough in proportion to the number of valid votes cast for Councilmen in such borough as thereinafter provided. Elections shall be conducted by the election authorities prescribed by the election law and the provisions of that law so far as applicable shall govern the election except as provision is otherwise therein made. (§ 1002.)
Each borough shall be a single separate district for the election of Councilmen by proportional representation and shall elect one Councilman for each seventy-five thousand voters who have cast valid votes for Councilmen within it. A remainder of fifty thousand votes or more shall entitle a borough to one additional Councilman, and each borough shall be entitled to at least one Councilman. (§ 1003.) In the nomination of candidates no primaries are to be held, but nominations shall be by nominating petitions containing the signatures of at least two thousand electors who have registered as voters in such borough within eighteen months prior to the filing of the petition. An elector can sign only one such petition. The petitions may specify party, group or individual designations, but shall contain no emblem. Electors may sign petitions regardless of their party affiliations. (§ 1004.) Unless voting machines are provided, Councilmen are to be voted for on paper ballots separate and distinct from ballots used for any other office. In the first election district the names of the candidates shall appear in alphabetical order; in the next district they are to appear in the same order except that the first name appears last; and they are to rotate in that manner in each successive election district in the borough. The ballots can contain no emblem, and only one square for voting before each candidate's name. After each candidate's name shall be printed the party, group or individual designation which, according to the certificate of the authorized officers of such bodies, he is entitled to use. Blank spaces are provided for writing in names. There will be no indication on the ballot of the definite number of candidates to be voted for. Voters are instructed to place the number "1" in the square opposite their first choice, number "2" opposite their second choice, and so on. They may mark as many alternate choices in this manner as they please. (§ 1005.)
Prior to the election, the board of elections must designate a central counting place for each borough where all
the ballots of that borough are to be brought together and counted publicly. Two directors of the count are to be appointed, one from each of the two major political parties. A staff of assistants is to be appointed, such assistants to be selected by non-competitive civil service examination and so as to secure equal representation of the same two parties. As soon as the polls have closed in each district, the election officials shall seal the ballot boxes and send them to the central counting place where the number of votes cast shall be checked with the records. In preparation for the count, the ballot boxes shall be arranged in the order of election districts (§ 1006), so that the first election district of the first Assembly district is first; the first election district of the second Assembly district is next, and so on. The first election district whose ballots are to be sorted shall be determined by lot, and the rest follow in regular numerical order. At the beginning the ballots are sorted according to first choices marked on them. Where the ballot does not clearly show which candidate the voter prefers above all others, or where it contains some mark identifying the voter, it shall be invalid, but otherwise the ballots shall be counted according to the intent of the voter. (§ 1007.)
Section 1007, subdivision "c," reads as follows: "Single transferable vote for each voter. Each candidate shall be credited with one vote for every valid ballot that is sorted to him as first choice or otherwise credited to him as hereinafter provided, and no ballot shall ever be credited to more than one candidate at the same time." The remaining subdivisions of section 1007 direct the crediting of ballots and the method of counting. The quota of votes sufficient to elect a Councilman shall be seventy-five thousand. Whenever at any stage of the counting the number of ballots credited to a candidate equals that number, he shall be declared elected and no ballots in excess of that number shall be credited to him. However, if, after a candidate has been so elected, a ballot
appears which indicates him as the voter's first choice and shows no other choice for any unelected candidate, it shall be given to the candidate of first choice and the last ballot sorted to that candidate which does show a choice for an unelected candidate shall be taken from him and re-sorted to the next available choice, as if it were being sorted for the first time. If a candidate has been found to be elected while the ballots are being sorted according to first choice, each subsequent ballot which shows him as first choice shall be credited to the second choice marked on it, or, if the latter has been also elected, to the next choice marked on it for a candidate not elected. When all the ballots have been thus sorted and credited to the first available choices marked on them, the total number of valid ballots shall be determined by adding the totals credited to all the candidates. The number of Councilmen to be elected from the borough shall be the number of times this total contains seventy-five thousand, disregarding fractions, except that a remainder of fifty thousand or more shall entitle the borough to one additional Councilman. Each borough is in any event entitled to at least one.
When this process is completed, each candidate credited with fewer than two thousand ballots is declared defeated. All the ballots credited to these defeated candidates shall be transferred, each to the candidate indicated on it as next choice among the continuing candidates. "A `continuing candidate' is a candidate not yet elected or defeated." (§ 1007, subd. i.) A ballot taken for transfer which does not clearly indicate any candidate as next choice must be set aside as exhausted. After the ballots have been thus transferred, the one candidate who is lowest on the poll shall be declared defeated and his ballots shall be transferred in the same way. Then the next lowest candidate is declared defeated and his ballots similarly transferred. This goes on until the election is completed. In deciding a tie, a candidate shall be treated
as having more votes than another if he was credited with more votes at the end of the last preceding transfer or sorting of ballots at which the numbers of their votes were different. Any tie not thus decided shall be decided by lot. When the number of candidates declared elected by virtue of having received the quota of seventy-five thousand votes equals the total number of Councilmen to be elected in that borough, the other candidates are then declared defeated, and the election is at an end. If, however, at any time all ballots of defeated candidates have been transferred and it is impossible to defeat another candidate without reducing the number of continuing candidates below the number still to be elected, all the continuing candidates shall be declared elected. (§ 1007, subds. i-n.)
For the purpose of facilitating a recount, it is provided (§ 1007, subd. o) that every ballot that is transferred from one candidate to another shall be so stamped or marked that its entire course from candidate to candidate can be conveniently traced. If in correcting an error or recounting ballots for any other purpose any ballots are re-sorted or re-transferred, every ballot shall be made to take the same course that it took in the original count unless the correction of an error requires its taking a different course. Provision is made for voting machines (§ 1008) and for the attendance of watchers, challengers, representatives and observers. (§ 1009.) Before the first of January following the election, the Board of Elections must cause the ballots to be examined and shall make public the number of first choice votes cast for each candidate and such other information as may be required, or which they may deem of interest. (§ 1010.)
The principal objections to this method have been to the whole system. It is insisted that a voter must be given the right to have his vote counted at all times and under all conditions for the man he voted for as his first and only choice, irrespective of the fact that the man may have been elected before his ballot was reached; and,
secondly, that it is illegal to have the number of Councilmen dependent upon the number of votes cast in the entire borough. In other words,actual representation according to numbers is illegal, althoughunequal representation according to unequal districts is legal. I cannot follow this reasoning.
We must always be careful in approaching a constitutional question dealing with principles of government, not to be influenced by old and familiar habits, or permit custom to warp our judgment. We must not shudder every time a change is proposed. Many times those who are strongest for efficiency in business are loudest in their protest against efficiency in government. At least this Hare System of Proportional Voting is an attempt to make representative government a reality. It is common knowledge that many of our districts are so divided that equality of representation does not exist. This proposed system may be unworkable; it may be so cumbersome or so intricate as to be impracticable; the results desired may not be obtained; the remedy may be worse than the disease, but what have all these to do with the Constitution? If the people of the city of New York want to try the system, make the experiment, and have voted to do so, we as a court should be very slow in determining that the act is unconstitutional, until we can put our finger upon the very provisions of the Constitution which prohibit it. It has been our repeated admonition that legislation should not be declared unconstitutional unless it clearly appears to be so; all doubts should be resolved in favor of the constitutionality of an act. This court has repeatedly stated that the wisdom of legislation is not for us to determine.
The Hare System of Proportional Voting has been used in Cincinnati, Toledo, Wheeling, Hamilton (Ohio), Boulder (Col.), Winnipeg, Calgary, for the Provincial Legislatures of Manitoba and Alberta; in all elections in the Irish Free State; in the election of nine university members of the
British House of Commons; in Australia, New Zealand, South Africa and Denmark. This statement I take from the briefs, as it has not been questioned. We cannot say, therefore, that it is a mere dream or speculation. It has been used and found to work. Can the people of the city of New York under our Constitution try it? That is the sole question.
Other courts have been divided upon this question. Wattles ex rel.Johnson v. Upjohn (211 Mich. 514) and People v. Elkus (59 Cal.App. 396) have held this system of voting unconstitutional under their State Constitution. (See, also, Brown v. Smallwood, 130 Minn. 492.) On the other hand, Reutener v. City of Cleveland (107 Ohio St. 117) declared it constitutional. (See, also, Commonwealth ex rel. McCormick
v. Reeder, 171 Penn. St. 505.)
The Corporation Counsel has also presented the point that the adoption of the Home Rule Amendment to the Constitution modified article II, section 1, or at least permitted the city by its charter, adopted under the Home Rule provision, to place restrictions upon voting not permitted by article II, section 1. We do not follow him in this argument. However, it is unnecessary for us at this time to pass upon the question as we feel, for the reasons herein stated, that chapter 43 of the new charter of the city of New York, relating to proportional voting, is not proscribed by article II, section 1.
The judgment entered at Special Term held in and for the county of Kings should be reversed, and the complaint dismissed, without costs. The order of the Special Term held in and for the county of New York should be affirmed, without costs.