Voting 9 to 0, the court overturned a 2006 ruling by the federal appeals court in New York that declared the party convention system for choosing nominees to the state’s trial court unconstitutional. The case, brought in early 2004 by a group of voters, unsuccessful judicial candidates, and the civic group Common Cause, had shaken the state’s judicial politics.
The appeals court had ordered the state to substitute a direct primary election for the judicial convention system, which it said deprived candidates who lacked the backing of party leaders of a realistic chance of getting on the ballot. The order was held up awaiting the Supreme Court’s decision.
Justice Antonin Scalia’s succinct 12-page opinion for the court was dismissive of what he characterized as the lawsuit’s premise. “None of our cases establishes an individual’s constitutional right to have a ‘fair shot’ at winning the party’s nomination,” he wrote.
The fact that the party leadership “effectively determines the nominees” at the nominating conventions, Justice Scalia continued, “says nothing more than that the party leadership has more widespread support than a candidate not supported by the leadership.”
He added, “Party conventions, with their attendant ‘smoke-filled rooms’ and domination by party leaders, have long been an accepted manner of selecting party candidates.”
The state’s Democratic and Republican political organizations had joined New York’s attorney general, Andrew M. Cuomo, and the State Board of Elections in arguing that the appeals court ruling should be overturned.
While the Supreme Court’s decision, New York State Board of Elections v. López Torres, No. 06-766, was thus a victory for the state’s political system, it was hardly a vindication of the status quo. Four of the nine justices wrote or joined separate opinions that were critical of the convention system.
“I think it appropriate to emphasize the distinction between constitutionality and wise policy,” Justice John Paul Stevens said in a one-paragraph opinion that was also signed by Justice David H. Souter. Quoting Justice Thurgood Marshall, Justice Stevens added: “The Constitution does not prohibit legislatures from enacting stupid laws.”
Justices Anthony M. Kennedy and Stephen G. Breyer said: “If New York statutes for nominating and electing judges do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now.”
Popular election of justices on the State Supreme Court — which, despite its name, is not the state’s highest court, but its basic trial court — is required by the state’s Constitution under a provision that dates to 1846. There are 328 Supreme Court justices, who serve 14-year terms. The Constitution leaves to the Legislature the method for selecting candidates for the ballot.
Initially, the Legislature left the choice up to the parties. That changed in 1911 with the passage of a law requiring direct primary elections, an experiment that lasted only 10 years in the face of criticism that the primaries favored wealthy demagogues.
In his opinion on Wednesday, Justice Scalia commented that a primary system “leaves judicial selection to voters uninformed about judicial qualifications and places a high premium upon the ability to raise money.”
In 1921, the Legislature adopted the current convention system, which remains unique to New York. In September of an election year, party members in each of the 150 Assembly districts vote for delegates to judicial nominating conventions that take place a week or two later in each of the state’s 12 judicial districts.
Those seeking to become delegates must have filed nominating petitions, with the signatures of 500 party members, two months earlier. The delegates do not openly pledge themselves to any particular judicial candidate.
At the conventions, nominees not favored by the party leadership have rarely succeeded in getting on the ballot. To have a chance, they would have to field slates of nominally uncommitted delegates in each of the dozen or so Assembly districts in a judicial district.
So there is usually only one slate of delegates, those favored by the party, and 96 percent of the judicial nominations are uncontested at the conventions. Would-be nominees may also file petitions to get on the ballot after obtaining several thousand signatures, also a rare occurrence.
The lead plaintiff in the lawsuit, Margarita López Torres, who is now the Brooklyn Surrogate Court judge, tried and failed at three conventions to obtain the Democratic nomination for a State Supreme Court seat. At the time, she was a Civil Court judge in Brooklyn.
She claimed that party leaders blocked her efforts to advance to the Supreme Court because she had refused to make the patronage hires that they demanded.
Her challenge to the system was based on the First Amendment, which protects the right to political association. The lawsuit, handled by the Brennan Center for Justice at the New York University School of Law, asserted that the delegate and nominee selection systems deprived insurgent candidates of meaningful access to the ballot and deprived voters of the right to associate for the purpose of selecting their preferred candidates.
Many Supreme Court precedents protect the right of political parties to organize their internal affairs, including nomination processes, free of state interference. But Justice Scalia found those cases irrelevant because, he said, they dealt with parties, not would-be nominees, and the parties themselves were not complaining.
He said the plaintiffs “complain not of the state law, but of the voters’ (and their elected delegates’) preference for the choices of the party leadership.”
The plaintiffs made the argument that their case against the nominating system was especially strong because one-party dominance in most judicial districts made nomination almost always tantamount to election.
In response, Justice Scalia said that the First Amendment did not authorize the federal courts “to manage the market by preventing too many buyers from settling upon a single product.”
For years, bar leaders in New York have called for a constitutional amendment to replace Supreme Court elections with a merit-selection system like the one used for the state’s top court, the Court of Appeals. Gov. Eliot Spitzer has proposed such an amendment, so far without success.
New York City’s corporation counsel, Michael A. Cardozo, who supported the plaintiffs in the lawsuit, said on Wednesday that he would push both for legislative change in the election system and for a constitutional amendment to eliminate elections.
Frederick A. O. Schwarz Jr., senior counsel at the Brennan Center, who argued the case at the Supreme Court, said the plaintiffs were considering “further litigation options” as well as “legislation that will end the closed process which has for too long undermined public confidence in New York’s courts.”
Andrew Rossman, who argued the case for the political parties, said the decision “vindicates the special place reserved in our Constitution for political parties to choose their nominees through the time-honored device of party conventions.”