New York Board of Elections, at al. v. Torres, Margarita, et al.

BY GIANG NGUYEN, MEDILL NEWS SERVICE

New York Supreme Court justices are selected on the strength of their party affiliation, not their abilities, or so says the 2004 suit filed by 10 unsuccessful judicial candidates against the New York State Board of Elections.

Joined by Common Cause, Margarita Lopez Torres, a former New York City civil court judge, and nine others challenged the constitutionality of an 86-year-old statute that provides for the selection of New York Supreme Court justices through a convention system.

The Board of Elections defends the convention-based system and says to overturn it would threaten representative democracy nationwide.

The candidates contend that the convention system disenfranchised voters by effectively shutting out judiciary candidates not backed by political parties.

"What has happened is that clubhouse politics has become so pronounced that the will of the rank and file (voter) is thwarted by the party leaders," said James Sample, who represents Torres.

Sample, a counsel with the Brennan Center for Justice, a non-profit and non-partisan public policy and law institute at New York University's School of Law, denounced the selection by convention system as a "charade," where party bosses worked behind closed doors, and veto power over the nomination of candidates was concentrated in the hands of a few.

The lower courts' opinions described how Lopez Torres faced extraordinary hurdles when navigating the convention process during her campaign for Supreme Court justice against the endorsement of her party.

According to the findings expressed in the opinions, Lopez Torres lost the backing of Brooklyn Democratic party leaders shortly after she was first elected to her civil court judgeship in 1992. After her successful bid, she was asked by party leaders to hire a law secretary they had recommended, but Lopez Torres found him to be unqualified and refused.

Having provoked her local Democratic Party leaders, the suit says Lopez Torres lacked the political endorsement in her 1998 run for Supreme Court justice. She decided to run without it, but was unable to secure a place on the ballot

New York's unique process for nominating judges to the State Supreme Court is unlike any other -- a partisan, multi-step process, that begins with a primary election of delegates from each district who then vote for judicial candidates nominated at a convention. The process involves establishing slates of delegates, circulating large petitions all within a short time frame.

Critics, including Lopez Torres, assert that the obstacles can only be overcome with "great wealth or the benefit of a political party's county-wide apparatus."

The United States District Court for the Eastern District of New York subsequently ruled in favor of Torres.

U.S. District Judge John Gleeson found that "[t]he judicial nominating conventions themselves are perfunctory, superficial events. They do not determine candidates, but rather formally endorse determinations made elsewhere." He noted that "almost all Supreme Court nominations in New York state are uncontested. There is no evidence of a single successful challenge to candidates backed by the party leaders."

The 2nd U.S. Circuit Court of Appeals later affirmed the ruling finding that the district court did not exceed its jurisdiction in the matter.

But defendants say the court's arguments are flawed.

In their petition for writ of certiorari, the defendants said the 2nd Circuit tried to assess "whether rank and file voters and so-called challengers had a ‘realistic opportunity to participate.'" But, they contend, that's an "amorphous standard that can only be measured by the outcome of the election."

In addition, the petition noted that the appeals court took the perspective of challenger candidates, but failed to consider the fairness of the system for other potential candidates. "[W]hen considered from the proper perspective of each participant's designated role in the process, rather than the 2nd Circuit's skewed challenger candidate view, all of the various participants have access to the system and the burdens on the right to vote are slight," it said.

Steven Shapiro, who filed an amicus brief on behalf of the Asian American Bar Association of New York in support of the defendants, said while the AABANY takes no position on the constitutionality of the convention method, the 2nd Circuit clearly went too far in its jurisdiction.

"We are not saying that the convention system is perfect," he said. "Everybody agrees that it should be more transparent. The process to become a delegate should be more transparent and the access of the public into that process should be greater."

But, "the court injected an inappropriate amount of judicial activism into the remedy," he said. "The notion of a default remedy (a primary election) is fiction, there is no default remedy. The legislation has always pointed to a convention," he said.

Since 1921, New York election laws have mandated that party nominations for Supreme Court justices be made through a district convention system.

But with its decision, Second Circuit's had issued a preliminary injunction that mandated judiciary nomination by primary election "until the New York State Legislature enacts corrective legislation."

However, the injunction has not taken effect yet, as parties to the suit agreed on a convention system in place for 2007, Shapiro said. The assumption is that "we might have a decision by early 2008," he added, presumably to reverse the lower court rulings.

"The Supreme Court doesn't take cert just to affirm," he added.

Sample does not see it that way. "The Court reviews cases for different reasons. There are idiosyncrasies to each case, " he said.

But Sample agreed with Shapiro on the need for more transparency.

"Opening up the process, which is now the political clubhouse, will lead to greater transparency," he said.

New York Supreme Court justices are selected on the strength of their party affiliation, not their abilities, or so says the 2004 suit filed by 10 unsuccessful judicial candidates against the New York State Board of Elections.

Joined by Common Cause, Margarita Lopez Torres, a former New York City civil court judge, and nine others challenged the constitutionality of an 86-year-old statute that provides for the selection of New York Supreme Court justices through a convention system.

The Board of Elections defends the convention-based system and says to overturn it would threaten representative democracy nationwide. The candidates contend that the convention system disenfranchised voters by effectively shutting out judiciary candidates not backed by political parties.

"What has happened is that clubhouse politics has become so pronounced that the will of the rank and file (voter) is thwarted by the party leaders," said James Sample, who represents Torres.

Sample, a counsel with the Brennan Center for Justice, a non-profit and non-partisan public policy and law institute at New York University's School of Law, denounced the selection by convention system as a "charade," where party bosses worked behind closed doors, and veto power over the nomination of candidates was concentrated in the hands of a few.

The lower courts' opinions described how Lopez Torres faced extraordinary hurdles when navigating the convention process during her campaign for Supreme Court justice against the endorsement of her party.

According to the findings expressed in the opinions, Lopez Torres lost the backing of Brooklyn Democratic party leaders shortly after she was first elected to her civil court judgeship in 1992. After her successful bid, she was asked by party leaders to hire a law secretary they had recommended, but Lopez Torres found him to be unqualified and refused.

Having provoked her local Democratic Party leaders, the suit says Lopez Torres lacked the political endorsement in her 1998 run for Supreme Court justice. She decided to run without it, but was unable to secure a place on the ballot

New York's unique process for nominating judges to the State Supreme Court is unlike any other -- a partisan, multi-step process, that begins with a primary election of delegates from each district who then vote for judicial candidates nominated at a convention. The process involves establishing slates of delegates, circulating large petitions all within a short time frame.

Critics, including Lopez Torres, assert that the obstacles can only be overcome with "great wealth or the benefit of a political party's county-wide apparatus."The United States District Court for the Eastern District of New York subsequently ruled in favor of Torres.

U.S. District Judge John Gleeson found that "[t]he judicial nominating conventions themselves are perfunctory, superficial events. They do not determine candidates, but rather formally endorse determinations made elsewhere." He noted that "almost all Supreme Court nominations in New York state are uncontested. There is no evidence of a single successful challenge to candidates backed by the party leaders."

The 2nd U.S. Circuit Court of Appeals later affirmed the ruling finding that the district court did not exceed its jurisdiction in the matter.But defendants say the court's arguments are flawed.

In their petition for writ of certiorari, the defendants said the 2nd Circuit tried to assess "whether rank and file voters and so-called challengers had a ‘realistic opportunity to participate.'" But, they contend, that's an "amorphous standard that can only be measured by the outcome of the election."

In addition, the petition noted that the appeals court took the perspective of challenger candidates, but failed to consider the fairness of the system for other potential candidates. "[W]hen considered from the proper perspective of each participant's designated role in the process, rather than the 2nd Circuit's skewed challenger candidate view, all of the various participants have access to the system and the burdens on the right to vote are slight," it said.

Steven Shapiro, who filed an amicus brief on behalf of the Asian American Bar Association of New York in support of the defendants, said while the AABANY takes no position on the constitutionality of the convention method, the 2nd Circuit clearly went too far in its jurisdiction.

"We are not saying that the convention system is perfect," he said. "Everybody agrees that it should be more transparent. The process to become a delegate should be more transparent and the access of the public into that process should be greater."

But, "the court injected an inappropriate amount of judicial activism into the remedy," he said. "The notion of a default remedy (a primary election) is fiction, there is no default remedy. The legislation has always pointed to a convention," he said.

Since 1921, New York election laws have mandated that party nominations for Supreme Court justices be made through a district convention system. But with its decision, Second Circuit's had issued a preliminary injunction that mandated judiciary nomination by primary election "until the New York State Legislature enacts corrective legislation."

However, the injunction has not taken effect yet, as parties to the suit agreed on a convention system in place for 2007, Shapiro said. The assumption is that "we might have a decision by early 2008," he added, presumably to reverse the lower court rulings.

"The Supreme Court doesn't take cert just to affirm," he added.

Sample does not see it that way. "The Court reviews cases for different reasons. There are idiosyncrasies to each case, " he said.

But Sample agreed with Shapiro on the need for more transparency.

"Opening up the process, which is now the political clubhouse, will lead to greater transparency," he said.

On Jan. 16, a unanimous Supreme Court reversed the Second Circuit decision. “Traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a ‘fair shot’ at party nomination,” Justice Antonin Scalia wrote for the majority. “Party conventions, with their attendant ‘smoke-filled rooms’ and domination by party leaders, have long been an accepted manner of selecting party candidates.”

Justice Anthony Kennedy, joined in part by Justice Stephen Breyer, declined to sign Scalia’s opinion but concurred in the judgment. He authored a separate opinion to raise concerns about whether the process of electing judges is “consistent with the perception and the reality of judicial independence and judicial excellence.”

Meanwhile, Justice John Paul Stevens wrote a one-paragraph concurrence, joined by Justice David Souter.

Questions presented:

(1) In American Party of Texas v. White, 415 U.S. 767 (1974), this Court held that it is "too plain for argument" that a state may require intraparty competition to be resolved either by convention or primary. Did the 2nd Circuit run afoul of White by mandating a primary in lieu of a party convention for the nomination of candidates for New York State trial judge?

(2) What is the appropriate scope of 1st 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?

(a) Did the 2nd Circuit err, as a threshold matter, in applying this Court's decision in Storer v. Brown, 415 U.S. 724 (1974) and related ballot access cases, which were concerned with the dangers of "freezing out" minor party and non-party candidates, to internal party contests?

(b) If Storer does apply, did the 2nd Circuit run afoul of Storer in holding that voters and candidates are entitled to a "realistic opportunity to participate" in the party's nomination process as measured by whether a "challenger candidate" could compete effectively against the party-backed candidate?