NY Board of Elections v. Lopez-Torres

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Authorship: This page is maintained by Scott Street, a student at Loyola Law School (LA). He was a summer associate at Akin Gump in 2007.

Contents

[edit] Briefs and Documents

Docket: 06-766

Oral Argument: Transcript

Judgment: REVERSED in an opinion by Justice Scalia.

Merits briefs

Amicus briefs

A great many of the lower court documents can be found here.

[edit] Pre-Argument Articles

[edit] 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.

[edit] Background

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.

[edit] 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.

[edit] 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.

[edit] Oral Argument Recap

Oral argument was held on 10/3/07.

READING THE SUPREME COURT’S ELECTION LAW CASES: IS THERE A DIFFERENCE BETWEEN THE EQUAL PROTECTION CLAUSE AND THE FIRST AMENDMENT?

By Scott Street

Earlier this month, I discussed why I believe the Second Circuit erred in conducting its burden analysis in Torres. Some people criticized that commentary. Their criticism compelled me to write another piece, explaining why I read the Supreme Court’s election law cases the way I do and why I think this Court will treat the right to vote differently than in other electoral mechanics cases.

A number of people believe that ballot access cases like Storer v. Brown and Williams v. Rhodes were decided under the First Amendment. The Second Circuit apparently agreed with them. Indeed, the Williams Court spoke extensively about the First Amendment freedom of association, describing how “[w]e have repeatedly held that freedom of association is protected by the First Amendment” and how that right “is entitled under the Fourteenth Amendment to the same protection from infringement by the States.” It even said that “the decisions of this Court have consistently held that only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms,” suggesting that it was deciding the case on First Amendment grounds.

While I would not call that language dictum, it distracts from the fact that the Court actually decided the case under the Equal Protection Clause. Make no mistake about it: even after writing about associational freedom, the Williams majority concluded that “the totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause.”

The appellants in Storer v. Brown, two independent congressional candidates and a Communist presidential ticket, tried to build on Williams’ expansive First Amendment language. As the Court itself explained, the Storer candidates “assert that under [Williams] and subsequent cases dealing with exclusionary voting and candidate qualifications, substantial burdens on the right to vote or to associate for political purposes are constitutionally suspect and invalid under the First an Fourteenth Amendments and under the Equal Protection Clause unless essential to serve a compelling interest.” But the Court reiterated that [i]t has never been suggested that the Williams-Kramer-Dunn rule automatically invalidates every substantial restriction on the right to vote or associate.” The Court did not even say that substantial restrictions would be subject to strict judicial review (which is what the Second Circuit and the Respondents in Torres assume). Instead it focused on whether the challenged election laws in California effectively discriminated against the independent candidates. The laws that supposedly burdened the voting and associational rights connected with the independent congressional candidates failed that test because they were “very similar to or identical with, those imposed on party candidates.” The Court’s analysis of the Communist presidential ticket’s claim was less clear. It assumed that “the requirements for an independent’s attaining a place on the general election ballot can be unconstitutionally severe,” and asked whether California’s signature requirements could “impose[] excessively burdensome requirements upon independent candidates,” which would be constitutionally suspect. But discrimination was still the theme that echoed throughout the Court’s opinion. It worried that the burdensome signature requirements would freeze-out third party and independent candidates from the political process: a classic Equal Protection concern that the Williams Court had discussed when it said that a “State must provide a feasible opportunity for new political organizations and their candidates to appear on the ballot” and that “[n]o discernible state interest justified the burdensome and complicated regulations that in effect made impractical any alternative to the major parties.” Thus, it made sense for the Court to measure whether “a reasonably diligent independent candidate [could] be expected to satisfy the signature requirements” because that could indicate whether California had adopted the requirement to freeze third parties out from the political process and monopolize that process for the major parties.

The same reasoning applied to Bullock v. Carter, which both sides of the Torres case claim for support. That case did not consider whether a primary election filing fee violated the First Amendment rights of candidates and voters to associate with each other, but rather measured whether the filing fee “unlawfully discriminates against the candidates so excluded or the voters who wish to support them” under the Equal Protection Clause. The Bullock Court found that “the very size of the fees imposed under the Texas system gives it a patently exclusionary character.” It emphasized the discriminatory effect of the filing fee system, stating that “[m]any potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how broad or enthusiastic their popular support.” Thus, the Texas system fell with “unequal weight on voters, as well as candidates, according to their economic status.” It was not enough that the system burdened the voting rights of voters and candidates: the Bullock Court only invoked strict scrutiny after it determined that those burdens were “related to the resources of the voters supporting a particular candidate.” The classification of voters accomplished by the burden on the right to vote denied those individuals the equal protection of the law.

None of these cases suggested what the district court and the Second Circuit decided in Torres: that the Constitution provides a “challenger candidate” with a “realistic route” to her party’s nomination. Of course, some later decisions suggested that severe burdens placed on voting and associational rights could violate the Constitution. One of those, Burdick v. Takushi, simply explained that, “when those rights are subjected to ‘severe’ restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance.” But even Burdick recognized the discrimination aspect of the Court’s cases, saying that it would generally uphold state laws that “impose[] only ‘reasonable, nondiscriminatory restrictions’” upon voting and associational rights. The Court even recognized that it had “repeatedly upheld reasonable, politically neutral regulations that have the effect of channeling expressive activity at the polls.”

To be sure, some of these later cases (especially Burdick) appeared to bundle the fundamental right to vote with the First Amendment freedom of association. I think the Court will undo that bundling in Torres because it necessarily transforms the right to vote, which has never been considered absolute, into a First Amendment right that the Court has always zealously protected. But I will leave that point for another discussion.


MORE THOUGHTS: How “Fundamental” is the Fundamental Right to Vote? Why the Second Circuit Erred in Conducting Its Burden Analysis

By Scott Street

Whoever said that judicial elections aren’t exciting clearly did not foresee the NY Board of Elections v. Torres case. True, the issue of how New Yorkers select their trial judges may not make front-page news the same way that cases challenging the partial birth abortion ban or reverse discrimination in public schools did. But Torres seems to have caused the Supreme Court to reevaluate its electoral mechanics cases and the case should require that it clarify how “fundamental” the fundamental right to vote in the Constitution is, as well as how that right intersects with the First Amendment freedom of association.

Tension has been building in the Court’s electoral mechanics cases for nearly a half century. On the one hand, the Court has always recognized that the Constitution does not provide individuals with an absolute right to vote. Thus, as my mentors at Loyola Law School, Professors Chris May and Allan Ides, have said, “nothing in the Constitution would prevent the City of Los Angeles from abolishing its practice of popularly electing the mayor and providing that the mayor [ ] instead be appointed by the city council.” On the other hand, the modern Court has been increasingly sensitive to laws that, while granting individuals the right to vote, burden the exercise of that right. Of course, denying the right to vote seems to be the greatest burden on the right imaginable. But, as Justice David Souter repeatedly emphasized during the Torres oral argument, if denying the right completely does not trigger strict scrutiny, no matter why it is done, how can smaller “burdens,” designed to ensure the sanctity of the electoral process, trigger heightened review?

The tension exists because lawyers and judges have seized upon language from Warren-era decisions that appeared to inflate the constitutional nature of the right to vote. The most obvious was Reynolds v. Sims, where the Court said that, “[u]ndeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as federal elections.” It even proffered that “[t]he right to vote can neither be denied outright, nor destroyed by alteration of ballots, nor diluted by ballot box stuffing.” And it concluded that, “since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement must be carefully and meticulously scrutinized” (the emphasis there is mine). That language gave rise to the Court’s burden analysis, which establishes the degree of judicial scrutiny based on the severity of the burden a law places on an individual’s voting or associational rights.

What many lawyers and judges failed to appreciate, though, was that “burden” cases like Reynolds, Bullock v. Carter, Harper v. Virginia Bd. of Elections, and Williams v. Rhodes, were decided under the Equal Protection Clause. In those cases, the Court was not concerned with the fact that certain laws burdened the right to vote, but rather was concerned about how the burdens operated as a type of discrimination that excluded certain groups of people from the political process. For example, in Williams, the Court lamented that Ohio’s restrictive signature requirements “make it virtually impossible for any party to qualify on the ballot except the Republican and Democratic Parties.” Similarly, the filing fees and poll taxes at issue in Bullock and Harper were obvious examples of southern states using facially neutral laws to effectively discriminate against minority voters. Voters could not challenge those laws on suspect class grounds because racial discrimination was not their predominant purpose and neither wealth nor political party identification is a suspect class under the Equal Protection Clause. But discrimination was at the core of the decisions. Both Bullock and Harper recognized that “the requirement of fee paying causes an ‘invidious’ discrimination that runs afoul of the Equal Protection Clause.” And, in conducting its burden analysis, Williams recognized the difference between “minor difference[s] in the application of laws to different groups” and “‘invidious’ distinctions.”

The burden analysis worked in those cases because, while not absolute, the right to vote is, as the Court explained in Harris v. McRae, “a substantive right to participate in the electoral process equally with other qualified voters” (emphasis added). Thus, just as laws that facially classify among suspect classes must pass strict scrutiny, laws that classify in a way that infringes on the exercise of a constitutional right also deserve strict scrutiny. Indeed, as Justice Stone suggested in his famous footnote four of U.S. v. Carolene Products, the Court should strictly review laws that restrict the political process and deny “discrete and insular minorities” access to that process to change the law, whether the State accomplishes that restriction by denying a class of people the right to vote outright or by making the right so difficult to exercise that it is non-existent.

But it makes no sense to mechanically apply the Equal Protection burden analysis when a State law does not classify voters in any way. That is what makes the Second Circuit’s decision in Torres so objectionable and what seemed to drive Justice Souter crazy during oral argument. Of course, that could change if the Court decides to elevate the right to vote to fundamental status for both due process and equal protection purposes. In that scenario, the burden analysis would make perfect sense. But the Court seems unlikely to go that far.

I suspect that the underlying problem with the Second Circuit’s analysis in Torres—and one that is no doubt giving the Court headaches as I write—is the way the court commingled the separate burden inquiries of the Fourteenth Amendment individual right to vote cases and the First Amendment associational right cases. Both inquiries measure the severity of burdens that a state law places on the constitutional right but I am not sure that an individual voter has a First Amendment right to associate with whoever she chooses at every stage of the electoral process. After all, the classic First Amendment associational right cases, like Tashjian v. Republican Party of Conn. and Calif. Democratic Party v. Jones, measured whether state laws impaired the ability of political parties to exercise their collective speech and voting rights, a far different inquiry from the one the Second Circuit conducted in Torres. Recognizing an individual right to associate would essentially turn the right to vote into an absolute constitutional right—something that the Roberts Court seems unlikely to do.


ORAL ARGUMENT RECAP

The following summary was written by Scott Street, a student at Loyola Law School in Los Angeles who worked as a summer associate at Akin Gump in 2007.

If yesterday’s oral argument is any guide, the Court will reverse the Second Circuit’s decision that New York’s judicial electoral system violates the Constitution. In doing so, it may finally clarify some vexing questions about its election law jurisprudence, including how the right to vote (fundamental for purposes of the Equal Protection Clause but not a constitutional right) affects the First Amendment rights of voters and parties, and vice versa. (To read the transcript of the argument, click here.)

Although it challenged both sides, the Court spent much of Wednesday’s argument peppering Respondent’s counsel, Frederick Schwarz, Jr., with difficult questions and hypotheticals. Justice David Souter led the charge, repeatedly couching the asserted “burdens” on Judge Margarita Lopez Torres as burdens on her ability to influence the ultimate decision makers, not burdens on her ability to access the electoral process.

One discussion in particular captured the Court’s concerns. Justice Antonin Scalia had pressed Schwarz on whether a state law that gave the political parties freedom to choose any method they wanted to select their judicial nominees would violate the Constitution. For all we know, the party might select its candidates by playing pin the tail on the donkey (no pun intended). Torres’ counsel conceded that such a scheme would not violate the Constitution. But he argued that, if a state expressly gave political bosses the power to select judicial nominees, without any input from the party members, that scheme would violate the Constitution.

It is difficult to rationalize those two positions – a theme that a majority of the Court picked up on in the latter half of Schwarz’s argument. His fallback position – that, regardless of the electoral scheme chosen, the Constitution affords voters and candidates a “meaningful opportunity to participate” in an election – also did not seem to win over the Court. Even Justice Ginsburg, one of the few justices who vigorously questioned the Petitioners’ lawyers, wondered how the Constitution could allow states to not provide for the election of judges at all, yet somehow violate the Constitution when they ask for popular input in a manner that does not raise any Equal Protection concerns (the parties concede that this process does not violate the Equal Protection Clause).

Schwarz tried to resolve those difficulties by invoking the language of the Court’s previous election law decisions, urging it to look beyond the language of the New York statute to make a “realistic assessment” of the “burdens” the law places on voting and associational rights. That persuaded the lower courts to strike down the New York statute here, but the Supreme Court kept stressing its flaws, envisioning a slippery slope that would allow any person who cannot win her nomination of choice to challenge an electoral system as unconstitutional. The argument also reflected serious federalism concerns. New York wants the public to have input in selecting trial judges. But it abandoned direct elections for judicial offices because it did not think that system worked. Finding this system unconstitutional would force the state to choose between a direct primary and appointment: a choice that it finds untenable.

Schwarz tried to dispute that point but as Theodore Olson, the former Solicitor General and one of the lawyers who argued for the Petitioners, pointed out, Torres specifically asked for a direct primary in her complaint. The fact that she did so underscores one of the most interesting aspects of this case: Torres thought the New York system unconstitutional not because of any flaws in the system itself but because of the way that powerful political bosses in New York City manipulate it. That manipulation, of course, does not violate the Constitution because it is not state action, so Torres had to use her failure in the electoral process as a means of attacking the statute itself, all while using the Supreme Court’s burden framework to get around the difficult doctrinal issues her case presented.

That won over the lower courts but it met fierce resistance in the Supreme Court, and it seems virtually certain to reverse the Second Circuit’s decision. How it does so will be more interesting. On the one hand, the Court could simply say that the burdens imposed on voters and candidates in this case were minimal and do not raise constitutional concerns – a position that would probably garner at least seven votes, especially given the competing First Amendment rights of parties. But Justice Souter’s comments reflect greater concerns about how the Court should use its “burden” framework, especially in the primary context. Answering that question would allow the Court to better define the way that First Amendment associational rights and the right to vote intersect and where each is implicated in the electoral process.

[edit] Opinion Analysis

The Supreme Court unanimously reversed the 2d Circuit's decision on January 16, 2008. The decision can be accessed here: [1]

For additional analysis, see:

Bruce Cahan: [2]

Allison Hayward, who touches on the political question theme of the majority opinion that I discuss below: [3]

Bob Bauer: [4]

Campaign Legal Center: [5]

The New York Times: [6]

For its part, the NY Times editorial board railed against the decision: [7]

Goutam Jois, a law clerk in Boston, offers a policy-based critique of Justice Scalia's opinion here: [8]


THE LOPEZ TORRES DECISION: A LITTLE CLARITY BUT STILL MORE CONFUSION

By Scott Street

On Wednesday, January 16, 2008, the Supreme Court unanimously reversed the Second Circuit’s decision in Lopez Torres (the Court has apparently settled on using the name “Lopez Torres” instead of “Torres”, as the respondent judge’s name was listed on earlier Court documents).

In an opinion authored by Justice Scalia and joined by every justice except Justice Kennedy, the Court easily concluded that New York’s judicial election process did not violate the associational rights of voters and candidates. In doing so, the Court offered some clarity to the muddle of election law jurisprudence that it has developed over the past 40 years. First, the Court distinguished between the associational rights of parties discussed in cases like American Party of Texas v. White and California Democratic Party v. Jones and the “individual’s associational right to vote in a party primary without undue state-imposed impediment” at issue in Lopez Torres. It construed the individual right narrowly, explaining that it merely protects voters from being “excluded from voting in the primary.” The voters in Lopez Torres had no chance of meeting that standard. That was why they tried to take the “burden” analysis of ballot access cases like Storer and Bullock and extend it to a First Amendment inquiry in the primary context.

But the Court saw through that ploy. The “real complaint” of the Lopez Torres plaintiffs, the Court explained, “is not that they cannot vote in the election for delegates, nor even that they cannot run in that election, but that the convention process that follows the delegate election does not give them a realistic chance to secure the party’s nomination.” But, as I have pointed out on this site several times and as the Court recognized today, that complaint has nothing to do with the constitutionality of the electoral process. In that sense, Justice Scalia noted that the ballot access cases on which the plaintiffs relied “have focused on the requirements themselves, and not on the manner in which political actors function under those requirements.” Because the Lopez Torres plaintiffs “complain[ed] not [about] the state law, but [about] the voters’ (and their elected delegates’) preference for the choices of the party leadership,” the Court refused to let them use the burden analysis of the ballot access cases.

That all came in the first section of the majority opinion. In its second part, the Court held that the respondents could not succeed on their asserted “First Amendment right to revision of party processes” based on the uncompetitiveness of New York’s judicial elections. To be sure, as the Court points out, “it is hard to understand how the competitiveness of the general election has anything to do with the respondents’ associational rights in the party’s selection process.” However, as far as I can remember, the respondents never claimed such a narrow associational right and they never based it purely on competitiveness. Rather, they argued that the lack of competition in the general election showed just how greatly New York’s electoral process burdened their associational and voting rights.

In that sense, Lopez Torres leaves many questions unanswered. The Court rejected the Second Circuit’s burden analysis—but for unstated reasons. For example, it did not explain whether the burden analysis only applies in Equal Protection cases where state action (be it a state election law or a political party that the Court deems a state actor) impinges on the right to vote, although its analysis suggests such a limitation. And it created even more confusion about the intersection of the right to vote (non-absolute but considered fundamental for Equal Protection purposes) and the First Amendment freedom of association. In one section, it described the associational rights of candidates and voters narrowly, stating that the First Amendment only “creates an open marketplace where ideas, most especially political ideas, may compete without government interference” (emphasis added). But it also described the asserted right in this case as an “associational right to vote.” If the First Amendment freedom to associate and the fundamental right to vote really are so intertwined, why should the Second Circuit’s burden analysis not apply?

Justice Kennedy, in a concurrence joined partially by Justice Breyer, suggested just that. He would have extended the Storer line of cases to primary challenges like Lopez Torres, although he found the burdens to be minimal in this case because New York has additional, reasonable avenues for unsuccessful candidates and their supporters to use to get on the ballot. The majority seems to disagree with that proposition. But it would have been nice to explain why.

Perhaps the majority had other concerns with this case and simply fit its circular file into the square peg of electoral mechanics cases. For instance, two things that clearly bothered the majority were not even addressed by the parties: (1) the fact that the respondents’ real complaint involved private action, not state action; and (2) the fact that it viewed the “fair shot” that the respondents wanted as “hardly a manageable constitutional question for judges—especially for judges in our legal system, where traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a ‘fair shot’ at a party nomination.”

That latter concern echoes the logic of the Court’s political question doctrine and this case would have been a good contender for its services. As Justice Stevens noted in a brief concurring opinion, quoting Justice Thurgood Marshall, “The Constitution does not prohibit legislatures from enacting stupid laws.”

[edit] Links and further information

  • In a case that raises similar issues to Torres, a federal judge in Florida rejected a challenge to the DNC's decision to punish Florida Democrats for moving their primary up to January. The DNC asked the state to not move its primary up but the state did so anyway. As punishment, the DNC said it would refuse to seat Florida's 210 delegates to the party's nominating convention next summer. Florida Democrats challenged that decision. Sounding a lot like the Respondents in Torres, the state leaders' attorney said that, "once a state sets its election, 'that election process confers a fundamental constitutional right upon the voters and no political party bosses in Washington should be allowed to erase those fundamental rights.

A recap of the decision appears here: [9]

  • Jake Dilemani, a contributor to NYU's Washington Square News who has participated as a delegate in New York's judicial nominating system, weighs in with this piece, arguing that the system does not violate the First Amendment:[10]

More analysis of the oral argument can be found here:

  • Westchester (NY) Journal News Editorial: [11]


News recaps of the oral argument on October 3:

  • The New York Times: [13]
  • The Washington Post: [14]
  • The Wall Street Journal's Washington Wire: [15]
  • The New York Sun: [17]
  • New York Daily News: [18]

Additional analysis and news articles:

  • Election Law Blog: [19]
  • New York Sun: [20]
  • New York Times [23]

[edit] Video

  • In video excerpts from the American Constitution Society, Paul Smith, partner, Jenner & Block LLP, previews Torres. [24]

[edit] Podcasts

  • Ohio State's Dan Tokaji discusses the case in a 9-minute podcast. [25]
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