New York State Board of Elections v. Torres (06-766)

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Appealed From: United States Court of Appeals for the Second Circuit (Aug. 30, 2006)

Oral argument: Oct. 3, 2007


Margarita L�pez Torres, nine other judicial candidates, and voters sued the New York State Board of Elections in federal court, claiming that state election laws regulating judicial elections violated the First Amendment rights of party members and candidates. Torres claimed that the state-mandated system by which parties elect nominees makes it impossible, in practice, for candidates without party backing to gain access to the party nomination ballot. In particular, Torres argued that the system enables party leaders to exert control over the nomination process, creating an environment ripe for abuse of judicial independence. As an example of such abuses, Torres offered her experiences as a judicial candidate: despite enjoying popular support in civil court elections, she failed in multiple district elections to receive the nomination of her party after refusing to follow the demands of party leaders.

After reviewing evidence of the lack of competitive elections and the difficulty of gaining access to the nomination ballot without party support, the Eastern District of New York agreed that New York's election laws violated the First Amendment associational rights of voters and candidates. The district granted a preliminary injunction mandating primary elections for party voters to select candidates. The Second Circuit affirmed, ruling that the District Court had acted within its discretion. The New York State Board of Elections ("New York State Board") now appeals, arguing that political parties' First Amendment rights are infringed by the lower courts' holding. The New York State Board further argues that the district court's remedy violates the First Amendment rights of political parties to control their intra-party nomination process. At issue in this case are the competing First Amendment rights of party members, candidates, and political parties during a party's candidate selection process. The Supreme Court decision will better define the scope of these rights in a unique situation: an intra-party nomination convention that is mandated and closely regulated by state law.

Question(s) 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 intra-party competition to be resolved either by convention or primary. Did the Second 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 First Amendment rights of voters and candidates within the arena of intra-party competition, and particularly where the State has chosen a party convention instead of a primary as the nominating process?

(a) Did the Second 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 Second 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?

3. In Bachur v. Democratic National Party, 836 F.2d 837 (4th Cir. 1987) and Ripon Society v. National Republican Party, 525 F.2d 567 (D.C. Cir. 1975) (en banc) the Fourth and D.C. Circuits applied a rational basis balancing test to weigh the coequal, but competing First Amendment rights of political parties in setting delegate selection rules against those of voters and candidates. Did the Second Circuit err in preferring the First Amendment rights of voters and candidates by first determining that New York's convention system severely burdened those rights and then subjecting the party's rights to strict scrutiny review?



Does New York's system of selecting judicial nominees violate the First Amendment rights of the candidates and their supporters, and if so, did the District Court violate the principals of judicial restraint and respect for legislative intent by ordering that judicial nominations be determined by primary?



One Judicial Candidate's Electoral Experience

During her tenure, New York civil court judge Margarita L�pez Torres refused to hire individuals recommended to her by local Democratic party leaders. Brief for Margarita L�pez Torres et al., at 12-13 ("Brief for Torres"). Party leaders explicitly told her that her refusal would have consequences if she ran for Supreme Court Justice, essentially stating that party leaders controlled the nomination process. Id. When Torres sought the party's nomination in 1997, 2002, and 2003, Democratic party leaders engaged in such tactics as directing delegates to other nominees, refusing to put her before the nominee screening panel, and preventing her from lobbying delegates by refusing to reveal the identity of delegates or the place and time of the convention. Id. at 13-14. The stance of party leaders and Torres' failure to garner delegate votes at nominating conventions contrasted with the public support Torres enjoyed, as evidenced by officials' requests that she run for Supreme Court nominee and her victories in civil court elections. Id. The Feerick Commission, formed by the New York judiciary to evaluate New York's judicial election system, determined that such experiences were far from unique. See Report of the New York State Commission to Promote Public Confidence in Judicial Elections at 13-14; see also NY Chief Judge Judith Kaye "2006 State of the Judiciary" speech at 4. Torres and nine other voters and judicial candidates filed suit in the Eastern District of New York against the New York State Board of Elections, alleging that New York's judicial election system for the state's trial courts is unconstitutional because it allows political parties to control trial court election.

New York State's Supreme Court Election System

New York statutes establish a mandatory multistage nomination process for candidates for the Supreme Court, New York's state trial court of general jurisdiction. N.Y. Elect. L. �� 6-106, 6-124 (McKinney (2006)). In the first stage, party voters in each state assembly voting district elect delegates for their political party. L�pez Torres v. New York State Board of Elections, 411 F.Supp.2d 212, 217-218 (E.D.N.Y. 2005). The party delegates from the smaller Assembly districts comprising a judicial district then attend the judicial district's nomination convention at which they nominate candidates for general elections for the Supreme Court. Id. at 218. In order to run for the position of party candidate in the general election for Supreme Court Justice, candidates must first be voted as a nominee by the delegates. Id. at 216.

Although New York is not unique in utilizing an electoral system to elect judges, the state's system is distinguished by the requirement that voters elect delegates who in turn elect nominees. Fact Sheet on L�pez v. Torres, Brennan Center for Justice at 3. In other states where voters elect trial court judges, a candidate may be placed directly on the party's primary election ballot by meeting simpler requirements such as submitting filings or paying small fees. L�pez Torres, 411 F.Supp.2d at 215-216. New York's trial court election system lacks such alternative mechanisms, so that a candidate must win a party's nominating convention in order to run in the general election as a major party's candidate. Id. Many districts in New York are one-party districts where candidates are cross-endorsed by the major parties. See Appendix G-2, Report of the New York State Commission to Promote Public Confidence in Judicial Elections. Torres argues that this enables party leaders to control elections. Brief for Torres at 23-24. The current convention system was enacted by the state legislature in the 1920's in response to judicial elections using direct elections (the primary system) that were overly dependent on candidates' campaigning and fundraising abilities, rather than their qualifications. Brief for the Petitioners, New York State Board of Elections et al. at 3-4. ("Brief for the New York State Board et al.")

Prior Litigation

Torres sued in federal district court in March 2004, alleging that the nomination process violated party voters' and candidates' First Amendment rights to free association, by preventing competitive elections. See L�pez Torres, 411 F.Supp.2d at 214.

The Eastern District of New York agreed with Torres and ruled that the New York convention system was unconstitutional because it violated the freedom of association of party voters and candidates seeking party nomination. L�pez Torres, 411 F.Supp.2d at 212, 253-254. The district court granted an injunction halting use of the convention system, and requiring the use of direct primaries until the state legislature acted. Id. at 255-256. The New York State Board appealed the decision, disputing the court's finding that the convention system created an unconstitutional burden and alternatively claiming that if a remedy was required, the provisions creating burdens should be modified, rather than subverting the legislature by scrapping the system. Brief for the New York State Board et al. at 13. On appeal, the Second Circuit affirmed, determining that the lower court did not abuse judicial discretion by granting an injunction. L�pez Torres v. New York State Board of Elections, 462 F.3d 161, 205 (2d Cir. 2006).



This case has implications for the way the First Amendment is interpreted to apply to political activity, and also may have an impact on minority representation in New York judgeships.

The First Amendment Freedom of Association

The First Amendment guarantees the freedom of association. Laws which frustrate legitimate candidates from appearing on the ballot frustrate the right of association of their supporters. See Anderson v. Celebrezze, 460 U.S. 780, 786-787 (1983). This right applies to a party's nomination processes as well as the general election. See United States v. Classic, 313 U.S. 299, 318 (1941). However, some circuits have also recognized that political parties themselves have a First Amendment right to organize their nomination process as they see fit. See, e.g. Bachur v. Democratic Nat'l Party, 836 F.2d 837, 841 (4th Cir. 1987); Ripon Society v. National Republican Party, 525 F.2d 567, 585-586 (D.C. Cir. 1975) (en banc). The scope of this right is unclear, as is how it should be weighed against the rights of individual candidates and party members.

The questions granted certiorari in this case imply that the Supreme Court might be willing to re-examine in a major way the scope of the right of association in the electoral process. The court may question the application of the right of association to New York's hybrid system, perhaps by holding that all the legislature intended was for party members to be able to freely choose delegates, not the final nominee, and that the law as applied puts no burden on that choice. It also might find that the political parties' right of association needs to weighed more heavily against the rights of the individual members and the candidates. See Brief for Petitioner New York County Democratic Committee, New York Republican State Committee, Associations of New York State, Supreme Court Justices in the City and State of New York, Honorable David Demarest, J.S.C., at 32-33. The court might even go so far as to find that the right of association does not apply to intra-party competitions like primaries or conventions at all, though this is extremely unlikely, as Classic's holding that the First Amendment applies to nominations as well as general elections is very well established law. The bottom line is that this case will likely affect the extent to which party primaries and conventions need to be open to candidates who do not have the support of the party higher-ups, and the extent of the rights of rank-and-file members of a party to influence their party's selection of a nominee.

Impact on Diversity in the New York Judiciary

This case also may have important implications for the diversity of the New York state bench. The Mid-Manhattan NAACP argues that the convention system has done much better at nominating minorities than a direct primary would. See Brief of Mid-Manhattan Branch of the NAACP, et al. as Amici Curiae of Petitioners, p 3-4.The Second Circuit, however, was skeptical of this argument, and pointed out the large disparities in representation that still exist. See Lopez Torres v. New York State Bd. of Elections 462 F.3d 161, 202-203 (2d Cir., 2006). The major difference between these two assessments seem to be that the NAACP is focusing on New York City judges, while the 2nd Circuit is looking at the state as a whole. However the data is split, it seems reasonable that if minority candidates generally have fewer resources to campaign for office, as the NAACP suggests, the convention system the court struck down might allow more minorities to receive nominations then the primary system the court put in its place. See Brief amici curiae of Mid-Manhattan Branch of the NAACP, et al. p 3-4.Rather then having to raise money and compete in an open primary, a minority candidate (or any candidate, for that matter) under the convention system needs only to convince the party leaders to support their nomination. However, a collection of minority legal groups argue that minority lawyers disproportionately lack the necessary contacts with the political establishment to win nominations and are excluded by a "closed, back-door system built on cronyism and political favors." Brief of Asian American Legal Defense and Eduacation Fund, et al. as Amici Curiae of Petitioners, p 4.They argue that an open primary system would allow for full minority participation, which would increase minority representation on the New York bench. Id.

Even if minorities do benefit from the convention system, however, the legitimacy of this process as a means to obtain judicial minority representation remains in question. Beyond the First Amendment problems with the process, judges chosen solely by party leaders, minority or not, face a serious question of impartiality and legitimacy. See generally Brief of John Dunne as Amici Curiae of Respondents, at 17-27. Additionally, if the nominations are de facto appointments, this would mean that whatever minority representation there is only exists at the whim of party leaders which, in theory, could be taken away just as easily as it is granted.

There are a number of alternative policies which arguably could help minority representation on the bench without sacrificing the freedom of association, or the perceived legitimacy of the New York judiciary. As the American Bar Association concluded in a report on judicial independence, judicial campaigns could be publicly financed to ensure candidates are on a level playing field and free of conflicts of interest. Going to the other extreme, the legislature could abandon the primary altogether and officially make the nominations the business of the party leaders, thus taking the First Amendment out of the picture entirely.

However, the NAACP's criticism of the Second Circuit's ruling is not about the Court's determination of the scope of the First Amendment right of association. Rather, the NAACP primarily objects to the Court's remedy of ordering a primary election. See NAACP Brief, at 11-17. The NAACP argues that the legislature has clearly expressed a preference for judicial conventions, not primaries, and that the Court of Appeals should simply have nullified the parts of the convention law that offended the First Amendment, instead of mandating that conventions be abandoned in favor of primaries until the legislature crafts an acceptable alternative. Id. The Second Circuit considered this argument in its opinion, but decided that eliminating only parts of the New York law was "tinkering" better left to the legislature, and worried that eliminating only some of the convention provisions would create "patchwork chaos." Lopez Torres, 462 F.3d at 206. The Supreme Court could rule that the convention system violates the First Amendment, but that the Court of Appeals overstepped its authority in striking it down in its entirety and could satisfy the NAACP's argument by crafting a more limited fix for the primary system. top


A. A First Amendment Right - But Whose?

This case stems from the indeterminate scope of the First Amendment associational rights of voters, candidates, and political parties in the context of a state-mandated intra-party nomination system. Each side argues that its associational rights weigh more heavily than the others in the nomination process required by state law.

Previous Supreme Court decisions provide some boundaries to these rights. Party members have a First Amendment right to an election process that does not diminish or dilute their vote in intra-party elections. Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). State measures forcing the inclusion or exclusion of voters from a party's nomination process are unconstitutional. See California Democratic Party v. Jones, 530 U.S. 567 (2000) (inclusion); Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) (exclusion). However, political parties also have First Amendment associational rights, including the right to select representatives through intra-party elections "unadulterate[d]" by state law. Jones, 530 U.S. 567, 581. First Amendment violations occur when a state regulation constitutes "an absolute bar to candidacy." Storer v. Brown, 415 U.S. 724 (1974). A political party also has the right to select its own "standard bearer". Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 224 (1989).

I. The New York Board of Elections Argues Precedent Does Not Support A Constitutional Right of Access to the Party Nomination Process

The Second Circuit, based on Classic and Terry v. Adams, held that First Amendment protections apply to all steps of a state-mandated nomination process and that candidates and voters have a constitutional right to a "realistic opportunity" to participate in that process. L�pez Torres 462 F.3d at 186-187. The New York State Board argues that the holding violates parties' associational rights by creating a "state-enforced" right of access that infringes on a party's control over intra-party processes. Brief for New York Board of Elections et al. at 12. The New York State Board faults the Second Circuit's reliance on Classic and Adams because the cases were not decided on First Amendment grounds. Brief for the New York State Board et al. at 19-20. The New York State Board also claims that the Second Circuit erroneously relied on cases limiting state power to restrict ballot access because those cases only addressed access to general election ballots. Id. at 17-18.

The New York State Board asserts that Supreme Court precedent supports the distinction between general elections and intra-party nominations. Under Jones, the First Amendment protects "the process by which a political party 'select[s] a standard bearer," Jones, 530 U.S. at 575 (internal quotations omitted). However, Eu distinguished the state's ability to mandate process from a party's right to control those processes. Eu, 489 U.S. at 231-232. Accordingly, these precedents establish that First Amendment protections for political parties are at their maximum during candidate-selection contests. Brief for New York State Board, et al. at 26-27. Therefore cases limiting state power to restrict access to general ballots do not apply to the intra-party nomination process. Id. at 18-20.

The New York State Board's argument shifts the focus to whether the restrictions constitute an "absolute bar to candidacy," per Storer. Brief for New York State Board, et al. at 22. Evaluated against this standard, the New York State Board insists that New York's requirement that candidates who are not nominees petition for access to the general ballot is constitutional. Id. Moreover, the New York State Board contends that the need for candidates without party backing to run independently does not constitute an "absolute bar" on two grounds: (1) there is no constitutional requirement that a candidate be allowed to run as member of her party, and (2) it is not an unconstitutional burden for a candidate to run as an independent in order to gain access to the ballot. Id. at 24. The state legislature determined that the nomination convention was suitable for trial court elections; the judiciary should not upset that legislative judgment, where the system implemented is constitutional. See Reply Brief for the Attorney General of the State of New York at 6.

II. Torres Argues the First Amendment Protects Association Rights of Rank-and-File Party Members and Judicial Candidates

Torres relies on Jones, Eu, and Tashjian, but for a different First Amendment right: the right of party members to associate with each other and with their candidates of choice. If party members' votes may not be diluted as held in Jones, then a state-mandated process that completely eliminates party members' ability to associate in order to support their chosen candidate must be unconstitutional. Brief for Torres at 22, 24. The New York's system destroys any chance for unbacked candidates to associate with party voters and thus access the nomination ballot because the system imposes the need to win delegates from many Assembly Districts, gives little time to lobby delegates, and has petition requirements that can only be fulfilled with party machinery. Id. at 28. Torres counters the Board's emphasis on party rights by pointing to Tashjian for the proposition that party members' associational rights are the strongest at the intra-party nomination convention. Id. at 22. In contrast to the Board's characterization of party leader control of the process as the result of private abuse, Torres argues that such control directly results from the state-imposed process, and that such a result cannot conceivably be within First Amendment protections for political parties. Reply Brief for the Attorney General of the State of New York at 7; Brief for Torres at 22-24.

According to Torres, the New York State Board errs in focusing on the intra-party nature of the nomination convention because the state-mandated nature of the convention systems makes cases limiting states' regulatory power applicable even in an intra-party context. Brief for Torres at 30. Given the frequency of one-party dominance and cross-endorsements between parties in districts, a nomination is tantamount to winning the general election victory. Id. at 12.New York's nomination conventions therefore disenfranchise party voters by translating party members' votes for delegates into blind votes for candidates. Id. at 23-24. Citing the inability of delegates to indicate on ballots the candidate for whom they would vote, and the need for candidates to run "slates of delegates" across assembly districts to win nominations, Torres maintains the First Amendment is violated by a system that gives the appearance of members' support for nominees for whom members may not have even voted, and making delegate votes ineffectual. Brief for Torres at 22, 26.

B. The Scope of the Remedy

If the Supreme Court finds that some portion of the New York law violates the First Amendment, it will have to consider whether the courts below overstepped their power in fashioning a remedy. The District Court ordered, and the Court of Appeals affirmed, that the laws creating judicial conventions, be fully enjoined and judicial nominees be selected by primaries until the legislature crafts an acceptable solution. Lopez Torres 462 F.3d at 205-08 (referencing N.Y. Elec. L. �� 6-106-124 (McKinney (2006)). In doing so it relied on section 6-110 of New York's election law which states that the default nominating process when none is specified is a primary. Id. The New York State Board argues that this remedy was inappropriate because it violates the principal of judicial restraint and misconstrues legislative intent. See Reply Brief for New York State Board, et al., at 18-20. Torres defends the lower court ruling by arguing that no other remedy was possible, and that the remedy is only a short-term measure. See Brief for Torres, at 48.

The New York State Board argues that judicial restraint requires the court not to eliminate the whole framework of judicial conventions, but simply to invalidate those portions which violate the First Amendment. Reply Brief for New York State Board, et al., at 19-20. The New York State Board also argues that invalidating one act of the legislature (the judicial convention statutes) and then relying on a more general law expressing a preference for primaries misconstrues legislative intent. Reply Brief for New York State Board, et al., at 18, 20. The Court of Appeals, considering these arguments below, found that the whole convention system was in violation of the First Amendment, and thus suspending the whole system was appropriate. See Lopez Torres 462 F.3d at 206. The court also argued that this solution demonstrated judicial restraint, since eliminating only parts of the New York law was "tinkering" better left to the legislature, and might create "patchwork chaos" if done by the judiciary. Id. The court also found that while it was clear that the legislature had not wanted primaries when it enacted the law, because the conventions violated the constitution, there was no way to honor that intent, and the more general statute would have to be relied upon. See id. at 206-207. They also point out that the court's remedy is only in force until the legislature crafts an acceptable solution, and thus any problem is this area is only temporary. Id. at 207-208.

Because this is an argument about a temporary remedy, the Supreme Court's take on this portion of the case will have less of a practical impact on the selection of judges in New York than its ruling on application of the First Amendment to the statutes in question. However, it may create important precedent by defining the limits of the remedy courts can impose when they find a statute unconstitutional.



In this case, the Supreme Court will need to carefully balance a number of competing interests. It would be virtually impossible for the Court to craft an opinion that not only preserves in full the First Amendment interests of the nominees, voters and political parties, but also appeases the minority groups looking for greater representation on the bench and respects the will of the New York legislature in writing the laws in question. The court's decision could be quite important both for First Amendment law and for determining the scope of discretion that courts have in correcting laws they find to be unconstitutional.


Prepared by: Joe Hashmall and Deepa Sarkar

Edited by: Cecelia Sander

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