Opinion
Argued October 5, 1970
Decided October 7, 1970
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, DE FOREST C. PITT, J.
David C. Weisberg, appellant in person.
Louis J. Lefkowitz, Attorney-General ( Cornelius F. Donahue, Ruth Kessler Toch and Jack W. Hoffman of counsel), for John P. Lomenzo, Secretary of State, respondent.
John Van Voorhis, Serphin R. Maltese and Henry S. Middendorf for James L. Buckley, respondent.
Order affirmed, without costs. Section 138 (subd. 5, par. [a]) of the Election Law, requiring 50 signatures from each county on a candidate's nominating petition, offends against the Equal Protection Clause of the Fourteenth Amendment in that it is violative of the one person-one vote principle. Consequently, the courts below were correct in concluding that the nominating petition of the Independent Alliance Party was valid as filed. (See Moore v. Ogilvie, 394 U.S. 814; see, also, Socialist Workers Party v. Rockefeller and Socialist Labor Party v. Rockefeller, decided by a three-judge Federal Court on June 18, 1970 [ 314 F. Supp. 984].) We agree, too, that the Secretary of State properly permitted another emblem to be substituted for the one initially selected since there was no likelihood that those who signed the nominating petition were confused or misled by the emblem originally chosen. (Cf. Matter of McCarthy v. Lawley, 27 N.Y.2d 754, decided herewith.)
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.