On October 3rd of this year, the Supreme Court will entertain arguments is New York State Board of Elections v. López Torres, which centers on the method by which the state of New York selects its trial judges. Margarita López Torres, an aspiring candidate, argued in the US District Court for the Eastern District of New York that certain elements of the convention system used in that state violate the First Amendment Rights of both the voting public and herself by concentrating an unfairly prodigious amount of power in the hands of political bosses. The District Court agreed with Ms. Torres, ruling:
Based on the substantial body of evidence before me, I conclude that the plaintiffs have made a compelling showing that the New York system is designed to freeze the political status quo, in which party leaders, rather than the voters, select the Justices of the Supreme Court. By preventing competition among candidates and deterring voter participation, the system is successful in fact at achieving that goal.
Also hugely important was the discussion of the people of New York’s efficacy in this determination:
I note finally that it is of no consequence that the party leaders discussed here in are themselves periodically subject to election by party members. A system in which an elected official has, as one of her many official duties, the job of selecting the members of the judiciary is the very definition of an appointive system. The Constitution of New York, however, could not state more plainly that an elective system is required. N.Y. Const. art. VI, § 6(c). In any event, New York law does not provide county and district leaders any official role in the nomination process (unless they happen to have also been elected as delegates). Therefore, voters cannot be expected to provide any check on party leaders’ judicial selections by voting those leaders out of office for exercising poorly a discretion with which they are not vested.
In August of 2006, The Second Circuit affirmed.
Here’s where this case becomes interesting. In 1974, the Supreme Court held 8-1 in American Party of Texas v. White (415 U.S. 767) that it is “too plan for argument” that intraparty competition can be resolved equally fairly by either direct election or primary. It seems to me that this case elucidates one example of the two systems working in a manner that is not equally fair, and, thusly, it may be impossible for the Court to uphold the ruling of the 2nd Circuit without overlooking stare decisis.
On a side note, the term “stare decisis” is frequently thrown around by legal pundits to invoke the idea of legal precedent. In reality, the full legal term is “stare decisis et non quieta movere” – or “stand by decisions and do not move that which is quiet.” The commonly removed predicate is perhaps unwisely commonly removed. In my opinion, any full interpretation of this term must acknowledge that the quieter something lies, the less it deserves to be awoken. For example, overturning Griswold v. Connecticut, widely considered the basis for Roe, would call into question (ie: awaken) an impossibly long list of salient legal dilemmas. For extended example, overturning White not only alters election law in New York, but so too in 30 other states with identical procedures.
Another issue to consider is established by the second of the Questions Presented. Also in 1974, the Court held in Storer v. Brown (215 U.S. 724) that candidates may not run as independents within six months of having been a registered member of another party. The Attorney General of New York, acting as de facto counsel for that state, argues that the Second Circuit’s ruling that all candidates should be allowed a “realistic opportunity to participate” may violate Storer (if applicable). The constitutionality of freezing out minority candidates is thus also at play. This case joins Washington State Grange v. Washington Republican Party, discussed at length here, in inquiring about the legality, purpose, scope, fairness, and inherency of primary systems. This Amicus brief jointly filed by of the Cato Institute, Reason Foundation, and the Center for Competitive Politics explains the vitality of this case more clearly than I could hope to. Regardless, it seems to me that this Court stands a chance to fundamentally alter (or clarify) election law to an extent not fully matched in the last 23 terms.
You can always find more information about upcoming cases before the court at our 2007 Term Case Index