NY State Board of Elections v. Torres

Bill Long 12/13/07

Docket No. 06-766; Oral Arg. October 3, 2007

If the Supreme Court felt they would "take a mental break" by hearing arguments on the Santos case today, they had to go back to work in the Torres case--a case of enormous complexity regarding the constitutionality of New York's law for electing members of the NY Supreme Court. A word of clarification--in NY the Supreme Court is a trial court rather than the highest court of appeals--that is the NY Court of Appeals. The issue in this case, then, has to do with how the 12 members of this court are elected. In a word, is the "convention" system of electing the party's nominees for the court, a system in place since 1921, constitutional?

Background

The only way really to answer this question is to understand the current system for electing these judges and then asking the question of whether this system violates the First Amendment to the Constitution (freedom of association). In this case the issue is going to be whether the complexity and difficulty of an "outsider's" being nominated to the bench is a difficulty of constitutional magnitude. Or, in the language of antitrust law, "Does NY's election law create too many high 'barriers to entry' to those seeking judicial election?"

The current "convention" nominating system for Supreme Court judges, in place since 1921, replaced a "direct primary" system which had been implemented in the progressive era. The current system is a "three-part scheme" that combines a primary election, a nominating convention and a general election. In the first phase, the State holds a primary election at which rank-and-file party members elect judicial delegates (NY Elec. L sec. 6-106). Then these delegates attend a convention where they elect their party's judicial nominees. These party nominees then appear on the general election ballot.

What is at stake here is primarily step one of the process--the way that potential delegates are selected to the nominating convention. These delegates are selected by Judicial District (12 of them in the state), but there may be many "Assembly Districts" in each Judicial District. An Assembly District is the territory represented by one representative in the NY Legislature. Each Assembly District will then elect its representatives to the convention. Some Judicial districts cover only a few Assembly Districts, but one covers 24 such districts. And, to add to the complexity, each Assembly District can sometimes nominate more than one (perhaps five) delegates.

So, a candidate from a particular judicial district may discover that s/he needs to recruit up to 70 or 80 potential delegates to represent his/her interests to run for the seats from the various Assembly Districts within the Judicial District. But, here is the kicker. Each one of these potential delegates has to collect 500 valid signatures to have his/her name put on the ballot even to become a convention delegate. Each voter, however, can only sign one person's signature page. Thus, with invalidated signatures, it takes perhaps 1000 or 1500 signatures collected for each potential delegate just to get on the ballot to be elected to the convention which will select party Judicial candidates. And you wonder sometimes if all of these people met on the road to St. Ives...

A Horror Story

Issues of great complexity are often decided through anecdotes--because that is the level at which we can understand the phenomenon. The Second Circuit, which declared NY's system unconstitutional (462 F3d 161 (2nd Cir. 2006)) in a massive opinion, gave the following example, from real life:

"For example, when a former City Court Judge ran for Supreme Court Justice in the Seventh Judicial District, he found that recruiting and running slates of delegates was “not a realistic option.” To compete in the primary election, he would have had to “recruit over 55 people to represent the 11 Assembly Districts that were within [his] Judicial District ... each of whom would have had to be willing to contribute significant energy, time, and money.” Finding that he would not be able to recruit this many delegate candidates, he pared down the list to the absolute minimum of delegates he thought he needed to elect to be competitive. Even if he were able to recruit enough delegate candidates, the signature requirements were daunting: he would have to recruit “several dozen people to work full-time at gathering” at least 9,000 signatures over the course of 37 days. Although an experienced campaigner who was active in county politics for several years prior to running for the Supreme Court, the lower court judge concluded that “there was simply no way [he] could overcome these organizational and financial burdens.”

Conclusion

So, that ultimately will be the issue--whether the high barriers to entry for a judicial candidate outside of the party mechanism (for it can be assumed that party "bosses" could rally the "troops" to get signatures for approved party candidates) constitutes an impermissible burden on a person's First Amendment assembly rights. If the Supreme Court feels that the NY procedure smacks too much of big cigars in closed back-room negotiations, it may just throw it out. But I think it will depend on the power of the horror stories...

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