Justice Scalia’s decision, upholding New York state primary rules for candidates for Delegates to Nominating Conventions, is only 12 pages long. The first 5 pages describe the background of the case.
Part II, on page 5, sets forth legal ideas and starts out: “A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform.” That sentence would seem to support the various pending lawsuits in which either the Democratic Party, or the Republican Party, of certain states, is demanding a closed primary for itself (even though the state law requires an open primary). The sentence goes on to say that, nevertheless, states retain the right to decide whether a party should use a convention or a primary.
Page 7 begins a short discussion of the New York state ballot access requirements for candidates for Delegate to Judicial Nominating conventions. However, the decision completely omits any discussion of the burden of collecting tens of thousands of signatures from party members in a 37-day period (because a candidate for Justice of the New York Supreme Court, to win a major party nomination, must run hundreds of candidates for Delegate, and each must submit a petition of 500 signatures). Instead, Scalia only mentions the 500-signature petition itself, and says it is eminently reasonable to collect 500 signatures. The decision then mentions previous unfavorable ballot access precedents, and says these decisions supported such laws “lest major party ballots become unmanageable (with too many candidates).”
Scalia seems to have forgotten that in 1986, he said in conference that “the ballot-crowding argument is a phony” (this is known because of Justice Blackmun’s conference notes, now in the Library of Congress). The irony is that the record in the Lopez Torres case shows that there is not a single instance when a candidate for Justice of the Supreme Court who was not supported by the party organization has ever been able to successfully get a complete slate of candidates for Delegate on the primary ballot. The ballot for this office is so uncrowded that the voters always have a single choice. When that happens, New York doesn’t even print the office on the primary ballot.
The bottom of page 7, and page 8, misrepresents the position of Lopez Torres. It says she complains that “the party leadership inevitably garners more votes for its slate of delegates than the unsupported (by party leaders) candidate can amass for himself.” This is a large flaw in Scalia’s opinion. Lopez Torres did not make this argument. She complained about the fact that her candidates for Delegate can’t get on the ballot, not that her candidates for Delegate can’t win.
Scalia makes another factual error on page 10. Again referring to past unfavorable ballot access arguments, he summarizes the 1986 decision Munro v Socialist Workers Party by saying “We upheld a petition-signature requirement of 1%”. There was no such petition requirement in that case from Washington state. Instead, the Washington law required a candidate to poll 1% of the blanket primary vote. Ironically, it was this case in which Scalia said at the Supreme Court conference that “the ballot-crowding argument is a phony.” Scalia has not only forgotten what he said; he has forgotten the factual details of the law in that Washington case.
It is unfortunate that Chief Justice John Roberts chose Justice Scalia to write this opinion. Scalia is not really interested in voting rights. That explains why his opinion is short, trite, inaccurate, and does not get shed any light on the reality of New York state judicial nominations.
Scalia is a product of the Pennsylvania Judicial System.
Richard,
Don’t you think that Scalia’s majority opinion in the blanket primary case, California Democratic Party v. Jones, was a good one?
Maybe this will help undermine the “shut up, you can just run as a Republican or Democrat” argument against ballot access.
I didn’t mean to imply that I am unhappy with California Democratic Party v Jones. It’s fine for the U.S. Supreme Court to uphold the rights of political parties to run their own nominations process. The problem is that the U.S. Supreme Court is so prejudiced against minor parties, that every time a minor party gets in front of the U.S. Supreme Court with a desire to control its own nomination process, the court says “no”. Most conspicuously, the U.S. Supreme Court told the Oklahoma Libertarian Party that it may not let all registered voters vote in its primary. Also the U.S. Supreme Court told the Minnesota New Party that if it wants to nominate a candidate who was also the Democratic nominee, it can’t do that. There is no consistency from the U.S. Supreme Court. The only consistency is that if it’s the Democratic or Republican Party that wants to run its own affairs, that’s fine; but when it’s any other party, the answer is different.
The “reality” of judicial nominations has nothing to do with constitutionality. I’m sorry you feel that way, Richard, but SCOTUS absolutely made the right decision in this matter.
I am a native New Yorker and I am well familiar with this rather bizarre process, which I fully agree should be scrapped, but the courts are not the ones to do it. Now that the issue has been settled in that venue, the “reformers” can move on to the proper forum for achieving their objective: the New York State Legislature.
By the way, I am old enough to remember the party state conventions that nominated candidates for statewide office, a system that was scrapped in favor of a primary election in 1968. Public pressure to do this worked then, and would work today, but my impression is this is not exactly a high priority among most New Yorkers these days, what with an out-of-control governor and confiscatory taxes.
Howard Hirsch
Chairman, Lyon County Republican Central Committee
Dayton, Nevada
This is a horrible piece of case law.
Scalia cites two separate cases in which the court has stated, “A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform.” but then also goes on to say that these rights are “circumscribed” when the State gives the party a role in the election process AND giving certain parties the right to have their candidates appear with party endorsement on the general-election ballot somehow counts as “giving the party a role in the election process.”
I disagree with Scalia that this is giving the party a role in the election process that results in party actions also being state actions, meaning that the State acquires a legitimate governmental interest in assuring the “fairness” of the party’s nominating process and enabling it to prescribe what that process must be. (He himself has said that a separate process exists by which independent candidates can get onto the ballot via petition.)
By making such a claim, Scalia is essentially nullifying the precedent set in the first two cases, which clearly states, “A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform.” How exactly can a party to CHOOSE a candidate-selection process when the state is mandating a primary election? These claims are incompatible.
Of course, Scalia is showing his true colors, when he says, “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.”
I am REALLY disturbed by this case–to the point where I feel like a death knell has just been struck for American democracy. The Supreme Court has just handed down a ruling which effectively allows the States to prevent individuals from voluntarily joining together, for the purpose of advancing shared political ideals.
The only saving grace here is that Scalia affirmed that conventions are NOT unconstitutional, should a State allow or require them. In addition, I also note that if the State were not printing party endorsement on the ballot, there would be no basis for Scalia claiming that the State has given the party a role in the election process.
The brain dead MORON lawyers for Lopez Torres failed to bring up Brown v. Board of Education 1954 — separate is NOT equal.
i.e. ALL ballot access cases have been brain dead moronic UNEQUAL since Williams v. Rhodes in 1968.
The EVIL party hack ROT continues — due to the EVIL party hack appointed Supremes.
The Lopez case may bring back the EVIL time before official primaries in the 1880s (repeat 1880s) — i.e. party hacks controlling regimes — think the Tammany Hall gang.
http://en.wikipedia.org/wiki/Tammany_Hall
Scalia’s opinion is really nothing more than a rehash of his reasoning behind CDP v Jones. His factual errors may make interesting debate topics, but they do not alter, or even explain, Scalia’s basic idea of political party associational rights, as articulated in Jones.
What is far more interesting, and potentially more important in the long run, is Kennedy’s concurrence, in which he is joined by Breyer. Kennedy observes, and rightly so, that the New York system would be subject to strict scrutiny, and consequently been found invalid, if there were not an alternative and reasonably easy method of gaining access to the general election ballot.
In the end, the battle in this case is really about the prestige that a party label lends to a particular ballot line. If Lopez-Torres can run as an Independent with relative ease the fact that the major party nominating system is, to quote Stevens, “stupid”, is pretty irrelevant to her rights as a candidate.
The ultimate question is what the practical effect of this line of cases is. They certainly buttress, and in a sense bind, the poltical parties’ right to exclude both candidates and voters. Henceforth there can no longer be any “big tent” politics. The purists of each party will be able to leverage their power to nominate candidates who are more and more polarized in their thinking, thus alienating the moderate and centrist members of each party.
There are already more so-called “Independent” voters in the electorate than either Ds or Rs. Soon, as a result of the powers handed to political parties in this decision, I expect the ranks of Independents will grow even more. And when their numbers amount to more than 50% of the electorate the Ds and Rs will wind up losing the very power they thought they had won today.
Already there is a strong movement in Washington State to abandon political parties altogether and convert all public offices to non-partisan offices. For an explanation of why, look at the merits briefs in Washington v Washington Republican Party – USSC # 06-713.
Howard: As I understand Richard Winger, he’s agreeing with the ruling itself. His criticisms involve some of the details, precedents, and reasoning.
Richard W.: You described Scalia’s ruling in Lopez Torres as “trite” and “inaccurate,” and I wanted to clarify that you wouldn’t use those words vis-a-vis California Democratic Party v. Jones. I had assumed that you agreed that the latter was a well-written, well-reasoned decision.
Richard S.: One reason there are now so many independents is that, since the 1986 Tashjian ruling, parties have had the right to invite independents into their primaries. When one or more parties invite independents, voters have less incentive to register with a party.
I’ve followed the controversy in Washington state since 2001. If the Supreme Court forbids the listing of candidates’ party preferences on a “top two” ballot– which, in my view, will be ridiculous– the Washington Grange will come back with an initiative for a “top two” WITHOUT party labels. The voters will then pass the initiative, and the parties– the Democrats and Republicans at least– will begin holding caucuses and conventions to endorse candidates for the “top two” ballot.
The reason the decision does not cite the burdens allegedly associated with candidates collecting thousands of signatures is that candidates have no role in the delegate selection phase of the process. A party member can run for delegate in NY by collecting 500 valid signatures. As mentioned in the argument, the Brennan Center wanted different roles for the candidates to play then the State provides. Since collecting 500 signatures is not difficult, the burdens are small. Candidates simply have no right to demand a process where they are permitted to take their case directly to the rank-and-file party members rather then to their elected representatives.
Instead of attacking Scalia, think about the fact that every single judge on the US Supreme Court voted to reverse the decision — 9 to 0.
The worst thing about Scalia’s decision is that he didn’t even mention the true burden. In the district that Lopez Torres lives in (Brooklyn Judicial District) she would have needed 305 candidates for delegate! Separate petitions are needed in each Assembly district, for the delegates from that Assembly district. The Brooklyn Judicial District has 21 Assembly districts within it. As the lower courts pointed out, no candidate for Judge who wasn’t backed by the machines has ever managed to get a full slate of delegate candidates on the ballot. Scalia didn’t mention any of this. On the one hand the US Supreme Court has said in the past that ballot access laws that are seldom used are probably unconstitutional. Here we have a situation in which someone who is so popular that she could probably win, can’t get her delegates on the ballot. What possible state interest is there in that? Not a word was said about the state interest in requiring so many signatures. Not a word.
The decision is simple: Lopez Torres does not have the right to a primary election or a process that is functionally the same. A candidate running delegates for rank-and-file voters to select is the same as a primary system. No such right exists to a primary type nomination system. It is no different then trying to run for a federal district court judge by running candidates for president and the senate. The system is not meant for a candidate to do that, but to address the candidacy to the elected person charged with the decision making. That delegates will not vote for a popular person such as Lopez Torres may suck for her, but it is not unconstitutional any more then a US Senator blocking the nomniation of a US District Court Judge. (this is from an actual comment made by Justice Souter and can be read in the Supreme Court transcript). Therefore, there is actually NO burden to a candidate to running in multiple assembly districts, much less 21, since candidates do not run delegates under the New York convention system.
Therefore, perhaps it possible that a decision that is only 12 pages with four pages of additional opinions is short, because the outcome is simply a no-brainer. 500 signatures can be collected by anyone. Therefore, there is absolutely no burden on voters, much less a burden that violates the US Constitution.
It’s not 500 signatures, it’s 10,500 signatures! A separate petition is required in each of 21 Assembly districts (for her particular district). Each of the 305 candidates for Delegate needs to be on one of those petitions. Only party members may sign and only 37 days are permitted. If Lopez Torres could do all that, she would do it. She has tried many times to get a Democratic nomination, and she also once ran as the Working Families nominee. She really, really want to run, and if she could, she wouldn’t have brought the lawsuit. No other anti-organization has done it either.
I wonder if the outcome would have been different if this had not been a judicial election case.
Since the Supreme Court in _White v. Republican Party of Minn._ overturned restrictions on political speech by judicial candidates, it appears that establishment interest groups — especially within the legal profession — have been steadily aligning against popular judicial elections and in favor of appointment by elected politicians advised by “expert” panels.
New York’s process is neither, but the court may have been reluctant to impose a popular election process when such processes have become so unpopular among people of the justices’ social milieu.
Here is the key:
“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.”
The US Constitution requires that Representatives be elected. State laws requires candidates to be nominated. But does the US Constitution require that the candidates be nominated via direct party primary elections, even in areas of single party dominance? No. And even if they were nominated by primaries, it would not mean that a Representative was chosen by the people, since a party primary has an exclusive electorate.
So how is this different from the case of Superior Court judges in New York? The NY Constitution requires them to be elected by the voters, and they are. Lopez Torres sought election in 2003 and lost.
Richard: I don’t see where the 305 delegates is coming from. The Federal District Court decision says that there were 124 delegates from 24 AD. The plaintiff’s brief says that Lopez Torres would have had to run 127 delegate candidates.
Richard S: Breyer only joined Part II of Kennedy’s opinion, which was the generalized rant about electing judges at all. Part I was the part where Kennedy said he would have dissented if not for the opportunity to petition to get on the general election ballot.
It’s different because the United States Constitution guarantees us freedom to association and freedom OF association. I actually agree with Scalia that Lopez Torres has no right to DEMAND association with a party (voluntary association is a voluntary two-way street) but to claim that a party can’t choose it’s own system for selecting nominees is simply insane.
To Green Voter: Who constitutes a party in its role as nominating/endorsing party? Is it (1) the voters who vote for the candidates of the party in the general election; (2) those who participate in its primaries or conventions; (3) those who are registered members? (4) Other, please specify.
(1) is not determinable, but is typically the basis for continuing ballot access. So shouldn’t the nominating process be as accessible to those persons as voting in the general election?
(2) if it is those who participate in the primaries, how can they decide not to have a primary?
(3) what if there is no party registration?
Jim R: (1) General election voters may be asked their party preferences in exit polls. This, of course, can only be a sample of the total turnout, but the numbers can be determined from the sample.
(2) The state decides whether parties are required to nominate candidates, and, if so, which method (s) of nomination the parties may use.
(3) In all but nine states, the voter’s choice of party on nominating day is publicly recorded.
Richard said: “It’s not 500 signatures, it’s 10,500 signatures! A separate petition is required in each of 21 Assembly districts (for her particular district).”
Actually you are simply wrong. Not a little wrong, but 9 Supreme Court Justices wrong. You want direct democracy (i.e. the candidate running delegates) when the state of new york provides represenative democracy (i.e. unpledged delegates). Lopez Torres did not a single petition signature for delegate to be “pledged” to her, but still ended up with approximately 1/3 of the vote at the conventions she lost. This is because enrolled members of the party can run as unpledged delegates in an assembly district. Some delegates supported her, just not enough to win. These delegates to not represent Lopez Torres or any other candidate, but rather represent their assembly district at the convention. What you want Richard is for Lopez Torres and other candidates to be able to take their case directly to the voters, but that is simply not represenative democracy.
So, I will say it one more time the reason that the court discussed 500 signatures (rather then the fantasy number of thousands) is because the only position that rank-and-file members have to select are their delegates.
Remember Stevens, Ginsburg, Breyer, etc… all agreed with Scalia that the correct number was 500 signatures. And if you actually read the transcript of oral argument, you’ll understand that this was viewed as a no-brainer. So, I guess the constitution does not stop states from enacting stupid laws, but it also doesn’t stop the Brennan Center from bringing stupid cases.
I don’t need the read the transcript; I was in the US Supreme Court building when the case was argued.