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.
