Comments on: Looking Ahead to New York State Board of Elections v. López Torres

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By: Jim

Jim — Mon, 31 Dec 2007 05:24:58 +0000

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.

By: James

James — Sat, 04 Aug 2007 19:57:04 +0000

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.

By: Richard Winger

Richard Winger — Sat, 04 Aug 2007 19:41:43 +0000

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.

By: James

James — Sat, 04 Aug 2007 18:52:23 +0000

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.

By: Richard Winger

Richard Winger — Sat, 04 Aug 2007 16:13:58 +0000

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.”

By: Kedar

Kedar — Sat, 04 Aug 2007 16:13:07 +0000

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.