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


8 Responses to “Looking Ahead to New York State Board of Elections v. López Torres”

  1. 1 Kedar

    Why did this case start in the US District Court? It seems to me like something the NY State courts would have to look at first.

  2. 2 Richard Winger

    Your analysis mischaracterizes the position of Lopez Torres. She does NOT argue that the New York system of using party conventions to choose judicial nominees is unconstitutional per se. You should read the briefs. She argues that the particular details of the present system make it unconstitutional. As one of the amici on her side said, “IF several of the more severe burdens imposed by the New York system were removed (e.g., the excessive number of signatures that delegates are required to gather, the extremely tight time frame for collection of signatures, and the number of delegates), it might well be that the revised system could pass constitutional muster.”

  3. 3 James

    I have read the briefs, and I disagree with your interpretation of Mrs. Lopez’s position. As one amici on her side said: “It cannot credibly be denied that the party leaders control the outcome of the nomination process. The only remaining question, therefore, is whether the federal Constitution permits a state [through the convention system] to give a handful of individuals such absolute power —over a purportedly elective office—that rank-and-file voters have literally never had the opportunity to overrule the leadership.”

    To clarify this argument, consider the second of the Questions Presented: “What is the appropriate scope of First Amendment rights of voters and candidates within the arena of intraparty competition, and particularly where the State has chosen a party convention instead of a primary as the nominating process?” This question asks about the structure of the primary system as opposed to direct election systems, and thus asks a constitutional question based on the system and not its details.

    I think the amici you pulled can be interpreted in context as a refutation of the appelleants’ argument that “the convention system is immune from constitutional scrutiny because there is an alternative path to the Supreme Court bench…[minor-party nomination].” Your quote makes both of arguments because, if those burdens were removed, the questions about Amendements 1 and 14 would also disappear.

    I consider the effort to get third party candidates on the ballot to be hugely admirable and even more important, but that goal is only part of Mrs. Lopez’s argumentation.

  4. 4 Richard Winger

    Part IV of the Brief for Respondents (Lopez Torres) is titled “The 2nd Circuit’s Decision Does Not Cast Doubt on the Historical or Current Use of Nominating Conventions.”

    That brief even has an Appendix B, which sets forth the details of all other state-sanctioned nominating conventions (for office other than president) and explains why the other states’ laws providing for conventions are OK and why New York’s particular type of Supreme Court Justice nominating conventions are not OK.

    Lopez Torres is not saying states can’t require parties to use conventions. She is attacking the particular details of New York state’s Supreme Court Justice conventions.

  5. 5 James

    I agree that Lopez Torres is not saying states can’t require parties to use conventions. I think the constitutionality of the convention system is only at play when considering the precedent of White, because the NY system is clearly an example of the primary system and the convention system NOT working equally fairly (as White theorizes that they should). I did not mean to indicate that the NY system is per se unconstitutional as a means of selecting judges, but rather that the specific problems in the NY method independently constitute constitutional violations that call the entire system into question via White.

  6. 6 Jim

    I just came across this site add the following belated commentary: Lopez Torres’ position is (and has been from the beginning of this case) that all true delegate conventions are unconstitutional. All of the examples provided of so-called constitutional conventions are the functional equivalent of primaries. For instance, Lopez Torres’ briefs below asserted that constitutional conventions are any where (1) the convention is non-final (i.e. candidates can thereafter petition onto a primary ballot), (2) all party members can show up and vote, and (3) pledged delegates run for office with the name of the candidate on the ballot. Her counsel made this clear when discussing a proposal he deemed inadequate to cure the alleged defects because “it does not envision a meaningful opportunity for voters to actually cast a vote for the candidate they support.

    See http://www.brennancenter.org/dynamic/subpages/download_file_38930.pdf.

    No true delegate based convention meets the standard for a direct vote since conventions are a form of representative democracy and that is why the White decision and America’s rich convention history would have to be jettisoned to affirm the lower court decisions.

    This is not to say that reforms could not be made to the curent system used in New York, but that policy decision rests with the Legislature.

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