Argument Preview

By Scott Street

In New York State Board of Elections v. Lopez Torres, the Supreme Court will determine whether a state violates the First Amendment rights of voters and candidates when it requires judicial candidates to seek their party's nomination through a delegate-based convention system dominated by party leaders.


New Yorkers started electing their state trial judges (who serve on what New York calls the Supreme Court) in the mid-nineteenth century. At that time, the state required political parties to select their candidates through a convention system. That system worked for awhile but in 1911 the state legislature changed the law to provide for party nomination by primary election. The primary nomination system lasted only nine years and was shelved due to concerns that it cost too much money, did not work as well as the convention system, and threatened judicial independence by favoring the best-funded candidates. The state legislature restored the convention system in 1921.

In this system, any person who is a member of a recognized political party may run for election as a delegate to that party's judicial nominating convention. Delegates represent a specific assembly district. A judicial district encompasses between nine and twenty-four assembly districts. An individual must get at least 500 valid signatures to get onto the delegate primary ballot. Then, on primary day, registered party members select their delegates. Although internal party rules dictate the precise number of delegates apportioned to each assembly district, the number must be substantially proportional to the total votes cast for the party's gubernatorial candidate in the last general election. A few weeks after their selection, the delegates meet to nominate their party's judicial candidates. The delegates are not pledged to a particular candidate in advance: any delegate may nominate any candidate in any open race. However, because most of the nomination battle occurs before the convention begins, the nominations and votes at the convention are typically a mere formality. Finally, New Yorkers go to the polls in November to select their Supreme Court judges. They may choose from: (1) the nominees selected by the recognized political parties at their conventions; (2) candidates who petition directly onto the ballot by gathering either 3500 (outside New York City) or 4000 (inside the city) signatures; (3) minor party candidates, as defined by the New York Election Law; and (4) write-in candidates.

A candidate endorsed by a major political party usually wins, so the convention system takes on greater importance in the process. In this vein, some candidates (including respondent Margarita Lopez Torres) have argued that the convention system suffers because it is dominated by powerful party leaders, who "“ the district court found "“ wield so much power that a candidate whom party leaders do not like have virtually no chance of winning the party's nomination. These candidates (joined by New York's Common Cause) sued the state on those grounds, arguing that the convention scheme denied them their right to participate in the process and denied voters their right to associate and vote for the judicial candidate of their choosing.

A federal district court in the Eastern District of New York agreed and enjoined the state from operating the system. It also ordered that primary elections replace the nominating conventions until the state's legislature adopted a new scheme. On appeal, the Second Circuit affirmed that decision, concluding that the First Amendment "affords candidates and voters a realistic opportunity to participate in the nominating process." According to the Second Circuit, the boss-dominated atmosphere of the convention system prevented a candidate who lacked the leadership's support from gaining the party's nomination. Because a major-party nominee usually wins the general election, the Second Circuit found that the system severely burdened the disfavored candidate's right to run for office and the voter's right to support that candidate. The court also refused to balance the associational rights of political parties against the rights of candidates and voters, concluding that any burden on the parties' associational rights paled in comparison to the severe burdens the system placed on disfavored candidates and their supporters.

Petition for Certiorari

The state and its co-defendants petitioned for certiorari in November 2006. The petition presented three questions: (1) whether the Second Circuit's decision ran afoul of American Party of Texas v. White by effectively mandating a primary instead of a party convention when nominating judicial candidates; (2) whether the Second Circuit erred in applying the Storer v. Brown line of ballot access cases to internal party contests or erred in construing Storer to include a "realistic opportunity to participate" standard measured by a challenger candidate's ability to compete against a candidate favored by party leaders; and (3) whether the Second Circuit correctly preferred the rights of voters and candidates to the rights of political parties by subjecting New York's convention system to strict scrutiny rather than applying a rational basis balancing test.

The petitioners argued that all three questions raised constitutional issues of national importance. For example, they argued, the Second Circuit's decision would render any convention unconstitutional because every convention places delegates between candidates and voters. They also challenged the Second Circuit's extension of Storer, arguing that the First Amendment rights of political parties peak during the candidate selection process and attacking the court's refusal to balance those interests against the rights of voters and candidates. They also asked the Court to resolve a split on this issue between the Second Circuit and the Fourth and D.C. Circuits, which applied a rational basis balancing test to uphold party rules that implicated the individual voting rights of party members and the associational rights of political candidates in the cases of Bachur v. Democratic National Party (Fourth Circuit) and Ripon Society v. National Republican Party (D.C. Circuit).

The respondents opposed the petition on four grounds. First, they argued that the interlocutory nature of the petition made Supreme Court review premature. Second, they minimized the national importance of the questions presented by arguing that no other state uses the type of hybrid primary-convention system for choosing judges that New York does and no other state imposes such severe burdens on the rights of voters and candidates. Third, they said that the Second Circuit had correctly extended the Storer line of ballot access cases to intraparty competition. Last, they distinguished the Bachur and Ripon cases, contending that those cases only dealt with challenges to internal party rules, not challenges to a state statute that severely burdened the constitutional rights of voters and candidates.

The Supreme Court granted the petition for certiorari in February 2007.

Merits Briefs

The petitioners do not deny that party bosses play a powerful role in the convention process: they simply contend that the Constitution does not prohibit them from having such power. Thus, they argue, the Second Circuit misconstrued the scope of the rights that attach when a state gives its residents the right to vote. The Supreme Court implied in White that nominating conventions are a constitutionally permissible way for a state to structure its electoral process, even though conventions dilute the votes of individual citizens by putting delegates between voters and candidates. The petitioners argue that that type of "burden" does not trigger strict scrutiny.

Second, the petitioners challenge the Second Circuit's extension of Storer to internal party struggles. They read Storer as being primarily concerned with electoral systems that freeze out political views, especially the views of independent candidates and third parties. Internal party struggles do not raise that concern. But, they argue, even if Storer does apply to internal party struggles, it only justifies giving voters and candidates access to the nominating convention. They distinguish Storer, which measured whether a reasonably diligent candidate could gain access to the general election ballot, from the Second Circuit's inquiry into whether a reasonably diligent challenger candidate could succeed in winning a party's nomination.

Third, the petitioners attack the Second Circuit for applying strict scrutiny to the New York system without regard to the competing associational rights of political parties, which the convention system furthered. They emphasize that the system places little if any burden on the rights of voters and candidates to access the convention system. While disfavored candidates might dislike the decisions made by the parties, those disagreements do not reflect constitutional defects in the system itself.

Fourth, the petitioners argue that the district court's remedy "“ replacing the convention system with a primary until the legislature devised a new system "“ was not narrowly tailored to cure the constitutional defect in the system. In Ayotte v. Planned Parenthood of Northern New England, the Court called legislative intent the "touchstone for any decision about remedy . . . for a court cannot use its remedial powers to circumvent the intent of the legislature." The petitioners note that New York's legislature eliminated the direct primary in the 1920s out of concern about the type of judges it produced, replaced that system with the convention system, and opted to keep the convention system despite decades of criticism. Therefore, they contended, the district court exceeded its discretion in remedying the defects it found in the convention system.

In the respondents' view, party members and candidates have First and Fourteenth Amendment rights to associate with each other at the nomination stage, and New York's system imposes severe burdens on those rights. Most importantly, the respondents distinguish this case, in which a restrictive nomination scheme was imposed on parties by the state legislature, from cases like Bachur and Ripon, in which political parties (acting through their members) adopted their own set of restrictive criteria for nominating candidates. Whatever merit such restrictive schemes might have, the respondents do not believe that a state can impose such a scheme without violating the First Amendment rights of the parties' members. Similarly, the respondents do not view their attack on New York's system to be an attack on the concept of nominating conventions generally. They simply believe that the First and Fourteenth Amendments protect the rights of voters and candidates to actually participate in that process once the state makes it available.

The respondents also argue that the district court's decision to enjoin the convention system and replace it with a direct primary fit within its considerable equitable discretion and actually reflected legislative intent, since New York election law provides direct primaries as a default system.

Posted in NY Board of Elections v. Lopez-Torres, Everything Else