NY Board of Elections v. Torres and Method of Electing Judges in NY

Though there seemed to be general agreement among the members of the Court that NY's law for electing judges was anything but a stellar law, none of the Justices desired to wade into the thicket of NY politcs/elections to say that this law was unconstitutional. This in itself demonstrates the wisdom of the Court; anyone from outside NY trying to "fix" NY's way of electing judges is asking for trouble. Yet, even though the decision of the Court was unanimous, several of the Justices wrote concurring opinions explaining why they could agree with the judgment but not follow Justice Scalia's reasoning completely. This essay briefly reviews some facts of the case as well as Justice Scalia's argument and the points made by two of the concurrers (Kennedy and Breyer).

The Facts and Decision

As you may recall, since 1921 New York has had a system of nominating Supreme Court judges via a party primary election. The details of that system are complicated but, suffice it to say, it is difficult for a newcomer or a person not favored by the party establishment to "break into" the system. Indeed, Ms. Torres, the original petitioner in this case, said that her refusal to "play politics" with the political party after her election to a local judgship in the late 1990s (by appointing people designated by the party to her staff) doomed her ability to move up to a Supreme Court position in New York. The Democratic party, she contended, has such a "lock" on the process that unless you get their endorsement, the ability to mount a successful signature drive to get delegates to the nominating convention is more than daunting. I gave the facts of her "horror story" in my previous essay.

I mused in that essay, however, that the US Supreme Court would only be inclined to intervene in the NY election process if the horror stories were really extreme. Though Torres no doubt was discriminated against by her party, her story just didn't seem to rise to the level of abhorrence that would lead the Supreme Court to intervene. As a result, the majority opinion dishes out a meal of pabulum on elections law that quickly makes you fall asleep. Justice Scalia, usually a fiery or caustic critic of things, writes without much energy in an argument structured as follows:

1. In general political parties have authority to limit its membership or hand out its endorsement the way it desires.

2. This right is not an unlimited right (i.e., you can't systematically discriminate against minority candidates--a sort of "duh" point in 2008).

3. In the present case a person is complaining because she hasn't had her "fair shake" at being elected.

4. There is nothing in party politics or even election law that assures a candidate that she/he will receive such a "fair shake" at election. He gets to the heart of his argument, in my judgment, with the following words:

"Respondents' real complaint 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. The party leadership, they say, inevitably garners more votes for its slate of delegates (delegates uncommitted to any judicial nominee) than the unsupported candidate can amass for himself. And thus the leadership effectively determines the nominees. But this says nothing more than that the party leadership has more widespread support than a candidate not supported by the leadership. No New York law compels election of the leadership's slate-or, for that matter, compels the delegates elected on the leadership's slate to vote the way the leadership desires. And no state law prohibits an unsupported candidate from attending the convention and seeking to persuade the delegates to support her," at *6.

The (boring) conclusion follows pretty directly from this analysis. Since election law is meant to protect the integrity of the process of election (though some may be laughing about that one, too) or access to the ballot, there is nothing that assures a candidate that s/he will have 'equal access' to victory. The Constitution would permit States to "set their faces against party bosses" by requiring party-candidate selection through processes more favorable to "insurgents" (is this a felicitous choice of words?), but this is a far cry from saying that the Constitution "demands" it.

In my reading, then, the horror stories of candidates for election had not gotten so shrill that the Supreme Court would intervene.

Concurring Opinion of Kennedy/Breyer

Justice Kennedy and Breyer's concurring opinion raises an issue that merits mention. Though Justice Scalia emphasized that the process never was meant to give an "insurgent" a "fair shake," these two Justices looked at what you might call a "safety valve" provision of the law to support the decision. They explained:

"As the Court is careful to note, however, New York has a second mechanism for placement on the final election ballot. Ante, at 4. One who seeks to be a Justice of the New York Supreme Court may qualify by a petition process. The petition must be signed by the lesser of (1) 5 percent of the number of votes last cast for Governor in the judicial district or (2) either 3,500 or 4,000 voters (depending on the district). This requirement has not been shown to be an unreasonable one, a point respondents appear to concede. True, the candidate who gains ballot access by petition does not have a party designation; but the candidate is still considered by the voters," at *10.

Thus, a person can evade the party process altogether by securing around 4,000 signatures supporting his/her candidacy. These Justices didn't mention how frequently independent judges are elected to the NY Supreme Court; all they were concerned with doing was pointing out a mechanism that could land a person's name on the ballot.

Yet the general sense of the Court is summed up in a quotation of former Justice Thurgood Marshall, made by Justice Stevens in his concurrence:

"The Constitution does not prohibit legislatures from enacting stupid laws.”

Maybe NY will "wise up." It isn't the province of the Court, however, to tell them how to do so...

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