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Edited on Tue Feb-05-08 07:19 PM by Land Shark
The bottom line in the January 16, 2008 US SUpreme Court opinion in Lopez-Torres is that wherever one or two parties in a legislature want to get together and deal themselves a state law that authorizes conventions instead of primaries, the parties NEED NOT GIVE ANYONE A FAIR SHOT at the nomination of the party. (The trial court had many pages of findings to the effect that it was "impossible" (the court's word) to obtain nomination as a judge without being the favoriate of party bosses and that party rank and file was unimportant, despite the primary election of "delegates" to judicial nominating conventions for each party). I call this case another victory for "machine politics" --- other victories for "machine politics" involve voting machines instead of political party machines. Even though this case is about conventions, there's still a primary election directly involved, -- it's just for the purpose of electing delegates to the judicial convention. More importantly, it's also giving the green light to switch to convention processes with party bosses realizing that they need not be fair in their nominations processes. I see that as VERY enticing and something both parties can (corruptly) agree on. This is a very disturbing case, IMHO. An edited version of the case is below. THE CAPS headlines are my characterizations, some a little sarcastic but I think appropriately so, about the court's anti-election attitudes. It's important to keep in mind that a long trial made detailed factual findings of a corrupt system that was "impossible" for non-boss-endorsed judges to get the 14 year terms that judges get once "elected". In unopposed general elections, such primary-nominated judges need not even appear on the ballot. TOTALLY UNDISCUSSED is Article VI section 6(c)-(d) of the NY Constitution which requires "election" of trial court Supreme Court justices in New York state. The net effect of this case is that judges need not be elected in any meaningful sense. BOTTOM LINE: EVEN IF you have a right to vote (you do) and a right to have that vote counted (you do, see US v. Classic and many other US Supreme Court cases) you do NOT have a right to a vote THAT COUNTS. (see how they can defeat the will of the people AND thbe will of the party Rank and File below). Experts from both sides acknowledged that the system is designed NOT to reflect the will of the party rank and file!on edit: Scalia is just flat wrong when he says the court has never before intervened in primaries. The Court did so in 1941 in US v. Classic SPECIFICALLY because the Louisiana "primaries" effectively controlled the general election - the exact issue here. And the Court's holding in the Classic case was not under the 14th or 15th Amendment but under the Article I right to vote, which, unlike equal protection, reaches not only STATE ACTION (a key underlying rationale of "hands off conventions" attitude below) but also reaches PRIVATE ACTION as well. Thus, had the parties litigated not just under the First Amendment but also under the right to vote and the nondelegation doctrine a different result SHOULD have been achieved). NOTE ALSO: The First Amendment prohibits the government from taking sides but the statutes blessing a "no need to be fair" convention system surely seem to be taking sides in the core area of political speech: elections.... ==================== LOPEZ-TORRES v. NEW YORK BOARD OF ELECTIONS558 US ____ (2008) January 16, 2008 A unanimous court, opinion by JUSTICE SCALIA with two concurrences: The State of New York requires that political parties select their nominees for (trial court) Supreme Court Justice at a convention of delegates chosen by party members in a primary election. FACTS NY is divided into 12 judicial districts, see Art. VI, §6(a); and Supreme Court Justices are elected to 14-year terms in each such district, see N. Y. Const., Art. VI, §6(c) electing a total of 328 Supreme Court Justices this way since the last time the method of selecting judges was changed in NY in 1921. SCALIA NOTES THAT WHEN NY HAD WHAT WE MIGHT CONSIDER REAL PRIMARY ELECTIONS THEY WERE "FRAUD" "The primary system came to be criticized as a "device capable of astute and successful manipulation by professionals," Editorial, The State Convention, N. Y. Times, May 1, 1917, p. 12, and the Republican candidate for Governor in 1920 campaigned against it as "a fraud" that "offered the opportunity for two things, for the demagogue and the man with money," Miller Declares Primary a Fraud, N. Y. Times, Oct. 23, 1920, p. 4. SECTION 6–106 OF NEW YORK'S ELECTION LAW SETS FORTH ITS BASIC OPERATION: "Party nominations for the office of justice of the supreme court shall be made by the judicial district convention." In a September "delegate primary," party members elect delegates from each of New York's 150 assembly districts to attend the party's judicial convention for the judicial district in which the assembly district is located. See N. Y. State Law Ann. §121 (West 2003); N. Y. Elec. Law Ann. §§6–124, 8–100(1)(a) (West 2007). An individual may run for delegate by submitting to the Board of Elections a designating petition signed by 500 enrolled party members residing in the assembly district, or by five percent of such enrolled members, whichever is less. §§6–136(2)(i), (3). These signatures must be gathered within a 37-day period preceding the filing deadline, which is approximately two months before the delegate primary. §§6–134(4), 6–158(1). The delegates elected in these primaries are uncommitted; the primary ballot does not specify the judicial nominee whom they will support. §7–114. The nominating conventions take place one to two weeks after the delegate primary. §§6–126, 6–158(5). Each of the 12 judicial districts has its own convention to nominate the party's Supreme Court candidate or candidates who will run at large in that district in the general election. §§6–124, 6–156. The general election takes place in November. §8–100(1)(c). The nominees from the party conventions appear automatically on the general-election ballot. §7–104(5). They may be joined on the general election ballot by independent candidates and candidates of political organizations that fail to meet the 50,000 vote threshold for "party" status; these candidates gain access to the ballot by submitting timely nominating petitions with (depending on the judicial district) 3,500 or 4,000 signatures from voters in that district or signatures from five percent of the number of votes cast for Governor in that district in the prior election, whichever is less. §§6– 138, 6–142(2). PLAINTIFF LOPEZ TORRES SUES BECAUSE AS A DISTRICT COURT JUDGE SHE'S FORCED TO DO CORRUPT PATRONAGE HIRING AND THEN IS SHUNNED FOR NOMINATION BY PARTY LEADERS. NO MENTION OF PATRONAGE CORRUPTION AS A PROBLEM BY SCALIA.B Respondent López Torres was elected in 1992 to the civil court for Kings County—a court with more limited jurisdiction than the Supreme Court—having gained the nomination of the Democratic Party through a primary election. She claims that soon after her election, party leaders began to demand that she make patronage hires, and that her consistent refusal to do so caused the local party to oppose her unsuccessful candidacy at the Supreme Court nominating conventions in 1997, 2002, and 2003. The following year, López Torres—and other voters brought suit in federal court against the New York Board of Elections. held that voters and candidates possess a First Amendment right to a "realistic opportunity to participate in nominating process, and to do so free from burdens that are both severe and unnecessary." Id., at 187. New York's electoral law violated that right because of the quantity of signatures and delegate recruits required to obtain a Supreme Court nomination at a judicial convention, see id., at 197, and because of the apparent reality that party leaders can control delegates, see id., at 198–200. In the court's view, because "one-party rule" prevailed within New York's judicial districts,
II
A
A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidates election process that will in its view produce the nominee who best represents its political platform. Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 122 (1981); California Democratic Party v. Jones, 530 U. S. 567, 574–575 (2000). These rights are circumscribed, however, when the State gives the party a role in the election process—as New York has done here by giving certain parties the right to have their candidates appear with party endorsement on the general-election ballot. Then, for example, the party's racially discriminatory action may become state action that violates the Fifteenth Amendment. See id., at 573. And then also the State acquires a legitimate governmental interest in assuring the fairness of the party's nominating process, enabling it to prescribe what that process must be. Id., at 572–573. We have, for example, considered it to be "too plain for argument" that a State may prescribe party use of primaries or conventions to select nominees who appear on the general-election ballot. American Party of Tex. v. White, 415 U. S. 767, 781 (1974). That prescriptive power is not without limits. In Jones, for example, we invalidated on First Amendment grounds California's blanket primary, reasoning that it permitted non-party members to determine the candidate bearing the party's standard in the general election. 530 U. S., at 577. See also Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 224 (1989); Tashjian v. Republican Party of Conn., 479 U. S. 208, 214–217 (1986).
THE IDEA OF HAVING A FAIR CHANCE IN AN ELECTION PRIMARY FINDS NO CONSTITUTIONAL SUPPORT. COMPLAINERS CAN BECOME INDEPENDENT CANDIDATES.
<…But>The weapon wielded by these plaintiffs is their own claimed associational right not only to join, but to have a certain degree of influence in, the party. They contend that New York's electoral system does not go far enough—does not go as far as the Constitution demands— in assuring that they will have a fair chance of prevailing in their parties' candidate-selection process. This contention finds no support in our precedents. We have indeed acknowledged an individual's associational right to vote in a party primary without undue state imposed impediment. <…> The signature requirement here is far from excessive. See, e.g., Norman v. Reed, 502 U. S. 279, 295 (1992) (approving requirement of 25,000 signatures, or approximately two percent of the electorate); <…>
SCALIA PARTIALLY ACKNOWLEDGES THE TRIAL COURTS FINDINGS OF FACT THAT IT IS IMPOSSIBLE TO BECOME A JUDGE WITHOUT PARTY LEADERSHIP SUPPORT.
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.
YES, WE'VE RULED THAT STATES CAN LEGISLATE AGAINST PARTY BOSSES, BUT THAT DOESn'T MEAN THEY HAVE TO OR THAT THEY CAN'T LEGISLATE FOR PARTY BOSSES INSTEAD.
<…> 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. <…> To be sure, we have, as described above, permitted
States to set their faces against "party bosses" by requiring party-candidate selection through processes more favorable to insurgents, such as primaries. But to say that the State can require this is a far cry from saying that the Constitution demands it. None of our cases establishes an
individual's constitutional right to have a "fair shot" at winning the party's nomination. <…>
THE COURT HOLDS THAT A STATE CAN DECLARE A CONVENTION PROCESS AND THAT NOBODY NEED HAVE A FAIR SHOT AT A PARTY NOMINATION AND NOTHING IN THE CONSTITUTION PROHIBITS THIS.
What constitutes a "fair shot" is a reasonable enough question for legislative judgment, which we will accept so long as it does not too much infringe upon the party's associational rights. But it is 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 party nomination. Party conventions, with their attendant "smoke filled rooms" and domination by party leaders, have long been an accepted manner of selecting party candidates.
THE COURT LISTS THE PROBLEMS WITH ALL CONTEMPORARY ELECTIONS AS A NOBLE REASON TO GET RIDE OF JUDICIAL ELECTIONS.
<…>Even conceding its propriety, there is good reason to believe that the elected members of the New York Legislature remain opposed to the primary, for the same reasons their predecessors abolished it 86 years ago: because it leaves judicial selection to voters uninformed about judicial qualifications, and places a high premium upon the ability to raise money. <…> Selection by convention has been a traditional means of choosing party nominees. While a State may determine it is not desirable and replace it, it is not unconstitutional.
THE UNIQUE SITUATION OF ONE PARTY RULE IN NY BY "MACHINE POLITICS" SUPPORTED BY DETAILED AND COMPELLING FACTUAL FINDINGS AT THE TRIAL COURT LEVEL IS IGNORED AND TWISTED BY THE COURT:
B
Respondents put forward, as a special factor <…> the assertion that party loyalty
in New York's judicial districts renders the general election ballot "uncompetitive." They argue that the existence of entrenched "one-party rule" demands that the First Amendment be used to impose additional competition in the nominee-selection process of the parties. (The asserted "one-party rule," we may observe, is that of the Democrats in some judicial districts, and of the Republicans in others. See 411 F. Supp. 2d, at 230.) This is a novel and implausible reading of the First Amendment. To begin with, it is hard to understand how the competitiveness of the general election has anything to do with respondents' associational rights in the party's selection process. It makes no difference to the person who associates with a party and seeks its nomination whether the party is a contender in the general election, an underdog, or the favorite. Competitiveness may be of interest to the voters in the general election, and to the candidates who choose to run against the dominant party. But we have held that those interests are well enough protected so long as all candidates have an adequate opportunity to appear on the general-election ballot. <…> To our knowledge, outside of the Fourteenth and Fifteenth Amendment contexts, see Jones, 530 U. S., at 573, no court has ever made "one-party entrenchment" a basis for interfering with the candidate-selection processes of a party. (Of course, the lack of one-party entrenchment will not cause free access to the general-election ballot to validate an otherwise unconstitutional restriction upon participation in a party's nominating process. See Bullock, 405 U. S., at 146–147.)
THE COURT FALSELY CHARACTERIZES CURRENT SYSTEM AS RESULT OF FREE VOTER CHOICES:
The reason one-party rule is entrenched may be (and usually is) that voters approve of the positions and candidates that the party regularly puts forward. It is no function of the First Amendment to require revision of those positions or candidates. The States can, within limits (that is, short of violating the parties' freedom of association), discourage party monopoly—for example, by refusing to show party endorsement on the election ballot. But the Constitution provides no authority for federal courts to prescribe such a course. The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference. See Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). It does not call on the federal courts to manage the market by preventing too many buyers from settling upon a single product.
COURT CLAIMS THAT POLICING THE FAIRNESS OF PRIMARY ELECTIONS IS ASKING THEM TO WORK TOO HARD OR TO DO SOMETHING THEY DON'T KNOW HOW TO DO
Limiting respondents' court-mandated "fair shot at party endorsement" to situations of one-party entrenchment merely multiplies the impracticable lines courts would be called upon to draw. <…>
But why limit the remedy to one-party dominance? Does not the dominance of two parties similarly stifle competing opinions? Once again, we decline to enter the morass.
* * *
NOTHING IN THE FIRST AMENDMENT BARS UNFAIR CONVENTION PROCESSES LIKE NEW YORK'S; IF YOU HAVE A PROBLEM WITH THAT TAKE IT UP WITH THE LEGISLATURE.
New York State has thrice (in 1846, 1911, and 1921) displayed a willingness to reconsider its method of selecting Supreme Court Justices. If it wishes to return to the primary system that it discarded in 1921, it is free to do so; but the First Amendment does not compel that. We reverse the Second Circuit's contrary judgment.
It is so ordered.
STEVENS SAYS IT'S A STUPID LAW BUT NOTHING IN THE CONSTITUTION PROHIBITS STUPIDITY
JUSTICE STEVENS, with whom JUSTICE SOUTER joins,
concurring.
While I join JUSTICE SCALIA'S cogent resolution of the
constitutional issues raised by this case, I think it appropriate
to emphasize the distinction between constitutionality
and wise policy. Our holding with respect to the former
should not be misread as endorsement of the electoral
system under review, or disagreement with the findings of
the District Court that describe glaring deficiencies in that
system and even lend support to the broader proposition
that the very practice of electing judges is unwise. But as
I recall my esteemed former colleague, Thurgood Marshall,
remarking on numerous occasions: "The Constitution
does not prohibit legislatures from enacting stupid
laws."
<…>
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