On January 12, the U.S. Supreme Court received the opposition brief in New York State Bd. of Elections v Lopez Torres, no. 06-766. If the state of New York wishes to rebut it, that brief must be submitted in the next two weeks. The U.S. Supreme Court will then probably decide in early March whether to hear New York’s appeal.

During August and September 2006, three U.S. Courts of Appeals struck down a state ballot access law. The three cases were from New York, Ohio and Illinois. It seems likely that neither Ohio nor Illinois will ask for U.S. Supreme Court review. Therefore, if the U.S. Supreme Court hears a ballot access case in 2007(because a state asked it to), New York is the obvious candidate.

The U.S. Supreme Court has acted in a biased fashion, over the last 23 years, in ballot access cases and in other election law cases. When a state government loses in the court below, the Court almost always hears that state government’s appeal. But when a state wins in the court below, the Court generally refuses to hear the appeal brought by the people opposed to the state law (except when the Democratic or Republican Parties bring an election law appeal to the US Supreme Court, that Court almost always accepts it).

The opposition brief filed in the Lopez Torres case makes it clear that the case is a ballot access case (New York state newspapers frequently misrepresent the case). The issues in the New York case are petition requirements that make it exceedingly difficult to get candidates for Delegate to Judicial Nominating Conventions on the primary ballot of the major parties. The opposition brief describes these petition barriers: “For each prospective delegate, the candidate would have to gather 500 valid signatures of party members residing in the specific Assembly District. As a result, the number of signatures required just to run a slate of delegates across a single Judicial District is several times larger than the number required to get onto the primary ballot for other judicial and non-judicial offices covering the same territory and rivals the number required to run for Governor statewide. In addition, a candidate would need to gather many more than the statutory minimum. Those few candidates who have tried to run alternate slates of delegates have not come close to success…One candidate testified he would have had to recruit ‘several dozen people to work full-time at gathering’ 9,000 signatures over the course of 37 days. The candidate concluded that ‘there was simply no way he could overcome these organizational and financial burdens.”

To read the entire brief, click here.