The lower court rulings, which were stayed until after the 2006 election cycle, have created turmoil in the state’s judicial politics and spurred calls for fundamental change in a system that dates to 1921. The political parties control the nominating conventions, and candidates who are not favored by the parties’ leaders have no chance of getting on the ballot. The actual elections are for the most part uncontested.
From 1994 to 2002, these nominating conventions in the state’s 12 judicial departments chose 568 State Supreme Court candidates, none of whom were challengers to the party favorites. The United States Court of Appeals for the Second Circuit, in a ruling last August affirming a decision issued five months earlier by Judge John Gleeson of Federal District Court in Brooklyn, ruled that the system was so exclusionary as to violate the First Amendment right of the state’s voters to freedom of political association.
“The First Amendment guarantees voters and candidates a realistic opportunity to participate in the nominating phase free from severe and unnecessary burdens,” Judge Chester J. Straub wrote for a three-judge panel of the appeals court. He added that the United States Supreme Court’s election-law precedents “establish that the First Amendment prohibits a state from maintaining an electoral scheme that in practice excludes candidates, and thus voters, from participating in the electoral process.”
The ruling was appealed to the Supreme Court by the New York State Board of Elections, joined by several political organizations; the incumbent State Supreme Court justices; and by Attorney General Eliot Spitzer, who was governor-elect by the time the appeal reached the court on Nov. 28.
Governor Spitzer’s view of the case will be a matter of some interest as it goes forward. Addressing the Rockefeller Institute of Government shortly after his election as governor, Mr. Spitzer indicated that he did not support the existing system, which he said was “in dire need of reform.” According to an account in The New York Law Journal, the governor-elect said that “there must be a way to primary onto the ballot,” and added that “I will not support anything that has a closed convention structure, where only those who came out of the convention could be on the ballot.”
Governor Spitzer’s office in Albany said on Tuesday that he would have no comment on the Supreme Court decision to hear the case, New York Board of Elections v. Torres, No. 06-766. The court will take up the case when its next term begins in October. It could be a year from now, or longer, before the justices issue a decision.
That long waiting period presents considerable uncertainty. Under Judge Gleeson’s original ruling, the state will have to begin to use a primary election system unless it comes up with another way to satisfy the court’s constitutional concerns. A bill to establish primary elections as the way to choose State Supreme Court nominees passed the State Senate last year and was reintroduced at the beginning of the new session in January.
But primaries present their own problems, including the need for candidates to raise considerable amounts of money. (Money is also an issue with the nominating conventions; a judge who was arrested in Brooklyn on corruption charges several years ago asserted that the going rate in the borough for the Democratic nomination for judge was $50,000.)
A task force convened by the New York City Bar Association in response to the court rulings recommended a system of merit selection, under which bar associations, civic groups and others would screen and present a list of candidates from which the governor or, in New York City, the mayor would choose.
Mark H. Alcott, president of the New York State Bar Association, said on Tuesday that the organization had long supported a merit selection system. The shift to such a system would require a state constitutional amendment. The Constitution was amended in 1846 to require election of State Supreme Court justices.
The challenge to the convention system was brought by a group of judicial candidates, Republican and Democratic voters, and the civic group Common Cause, represented by the Brennan Center for Justice at New York University Law School. The lead plaintiff, Margarita López Torres, who is now the Brooklyn surrogate court judge, tried and failed several times to obtain a Democratic nomination for State Supreme Court. As an elected Civil Court judge, she refused an order to make a patronage appointment of a law secretary, and complained that she was told by a party leader that she “did not understand the way it works.”