New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-09-19
TAMMANY ELECTION LAW
IS UNCONSTITUTIONAL
Justice Gavegan Decides That II
Limits the Rights OF In
dividuaI Electors.
"MAKES VOTING DIFFICULT"
Says It Is Obvious That Illiterate
Person Could Only Cast Straight
Ballot by Making x at
Top of One Column.

The Tammany amendment 10 the cleo
ton law, known az the Levy law,
passed in the last session Of the Legis-
lature was declared unconstitutional
yesterday by Justice Gavegan. Of the
Supreme Court
This is the first legal decision on the
new law, which has been attacked
throughout the state and which was
voted into the statutes for the obvious
purpose of preventing any coalition at
the elections against Tammany.
The law as IL stands prevents the
rame of any candidate from Appearing
in more than one column on the ballot.
The matter was brought before the court
on the motion Of John J. Hopper,
chairman Of the executive committee
Of the Independence League; Samuel J.
Koenig, president Of the Republican
County Committee, and Assemblyman
Andrew F. Murray, Of the 18th Assem-
bly, District, to enjoin the Board Of Elec-
tions from enforcing the new law. The
action was brought as test case.
In his decision Justice Gavegan fol-
lowed the opinion of Chief Judge Gull
len Of the Court of Appeals, in another
election case, in which Judge Cullen
said:
II the LEGISLATURE does grant 10 any con-
Vention. committee or body the right 10
make nominations, IL cannot limit the right
of such convention. committee or body 10
nominate as its candidate any person VINO
is qualified for the office ] insist mat the
Legislature has not the right 70 legisiate
as to induce either partisan voting OF
independent voting.
That par; Of the decision by Judge
Cullen exactly fitted the objection
against the Levy law, which would dis
cnfranchise independent political par
ties or voters by making IT impossible
20 place the name Of a man already
candidate undor their own emblem.
Judge Cullen said further:
The fact is plain that the legislative pro,
vision is solely intended 10 prevent pohucal
combination and fusion. and this is the
very thing that I insist there is no right TO
prevent or hamper as long as our theory
of government prevails. that the source
of all power is the people as represented
by the electors.
The decision Of Judge Cullen, said
Justice Gavegan. would control in the
case at bar were it not for the limita-
ton placed by tie Levy act on the def
milton Of the term nomination" on
this point Justice Gavegan said:
But even II the question raised by this
amendment in its relation TO the rights or
political parties could be differentiated by
legislative refinement OF definition from the
rule laid down in the matter OF CallaEan
We are still able 70 consider the question
in relation 10 the rights OF the individual
eleCtOr under the terms OF the constitution
itself which are so plain and unmistakaDle
az not 10 be susceptible Of change by either
legislative or judicial definition.
on the argument before Justice Gave
gan the petitioners produced a ballot as
il would be under the new law. It
measured eight feet by two feet and
showed the difficulty that would con-
front the independent voter. Said JUS
tee Gavegan:
The very object Of the election law as
declared I'm its original title. was 10 make
independent voting easy, not dlHcult' anu
the courts OF this state nave always con ,
demned statutes which make arbitrary as
tinctions in favor OF one pohucaI CLASS
against another.
Nor must II be forgotten that If the act
deprives one man who is typical or class
from the privilege secured TO others OF the
same class il is unconstitutional. II IL
obvious that under this amendment the
only way an illiterate voter can vote
straight ticket Is by making an 'X' in the
circle NJ the top OF the column which con
tains the names OF all OF his party cahdl-
dates. which. Of course, excludes hlterate
voters from voting straight ticket where
the names Of their party candidates are
contained in different columns. Here we
are confronted with an Increase IN the
qualifications Of a voter who IS typical or a
class. which Is an additional argument
gainst the validity OF the act
Tho order was granted on the peti-
tions of the Republican County Com
mittee and the executive committee Of
the Independence League.
As 10 the petition Of Assemblyman
Murray. who expects TO be renomlnated
by the Republican party and the lnde-
pendence Leasue. Justice Gavcgan said
that It was premature, az the nomina-
ticns have not yet been made.
The next move 10 settle the question
of the constitutionality OF the Levy law
Will be an argument before the Appel
late Division on the appeal which the
Corporation Counsel Will take. y special
session of the court viii De convened
for this purpose and probably the argu-
ment will be made next Monday. The
matter will then be rushed 10 the Court
Of Appeals for a final decision in time
for the coming election.
s
DEATH VALLEY MAN IN FUNDS