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Posted January 18, 2008 by Tara Malloy

Making Sense of Lopez Torres

The Supreme Court’s opinion in New York  State Board of Election, et al. v. Lopez Torres, et al. is a problematic decision.  This result is perhaps inevitable given that the case involved a problematic New York state law requiring political parties to nominate judicial candidates through a hybrid primary election-convention process.  The holding, however, will hopefully have limited application to voting rights cases not connected to the party primary process, such as the Indiana voter identification case still pending before the high court (Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita).

This is not to put too happy a slant on the decision.  The Court certainly gives short shrift to party members’ First Amendment rights to associate in their political party to support their chosen candidate.  The Court acknowledges that if the state gives a party a “role in the election process,” then the state “acquires a legitimate governmental interest in assuring the fairness of the party’s nominating process.”  Slip Op. at 6.  After this bare statement, however, the Court does not worry itself much with the “fairness” of New York’s judicial nominating process.  Clearly though, the Court does not believe “fairness” or the Constitution require that individual party members (or challenger candidates) have a “fair chance of prevailing in their parties’ candidate-selection process.”  Id. at 7.  Indeed, the opinion speaks approvingly of “[p]arty conventions, with their attendant ‘smoke-filled rooms’ and domination by party leaders” as an “accepted manner” of selecting party nominees.  Id. at 9.

This position is particularly disquieting in this case because New York law provides for a primary election in which party members elect delegates to represent their interests at the convention.  Although the state has thus chosen “to tap the energy and legitimizing power of the democratic process,”[1] the Court makes no inquiry into whether party members’ votes in this primary election have any functional meaning.  State law prohibits the primary ballot from identifying which judicial nominee(s) the candidates for delegate support – making it impossible for party members to signal their preferences.  In fact, because the system makes it impracticable for an insurgent candidate to run a full slate of delegates in every necessary assembly district, it is very possible that the only candidates for delegate in a given district are those backed by the party leadership.

But in considering the delegate election, the Court seems satisfied that the rank and file have the “associational right to vote” for a convention delegate “without undue state-imposed impediment.”  Slip op. at 7.  It ignores the question whether this delegate vote in reality has any influence over the ultimate selection of a judicial candidate at the convention – a convention that indisputably is rigged to produce the results desired by the party leadership.  Essentially, the Court asks only whether the party members are permitted to vote, not whether the state-created nominating system will give their vote any effect.  The justices flatly reject the idea that party members should have “a certain degree of influence in the party” – although one might be excused for thinking that is the precise point of voting in a primary in the first place.  This analysis creates a complete disconnect between the formal act of voting and the substantive electoral result the voter supports.  Apparently the Constitution protects a voter’s interest only in the former, not the latter.  How might this elevation of form over substance might play out in other voting cases?

Justice Kennedy’s concurrence – although a little more solicitous of First Amendment rights than the principal opinion – was ultimately not supportive of the respondents' position either.  He states that: “Were the state-mandated-and-designed nominating convention the sole means to attain access to the general election ballot there would be considerable force, in my view, to respondents’ contention that the First Amendment prohibits the State from requiring a delegate selection mechanism with the rigidities and difficulties attendant upon this one.”  Slip op. at 1 (Kennedy, J., concurring).  He then concludes, however, that because there is a second method to secure a slot on the general election ballot – namely, the independent petitioning process – a challenger candidate could still be “considered by the voters.”  Id. at 2.  He does not explain how a candidate’s access to the general election ballot protects party members’ associational rights in a party primary.  Kennedy seems to acknowledge this limitation to his argument, admitting that: “[t]his is not to say an alternative route to the general election exempts the delegate primary/nominating convention from all scrutiny.”  Id. at 3.  But he ultimately seems to find comfort in the fact that the heavy burden imposed in the primary stage (by the convention process) is “mitigated” in the general election stage (by the petitioning process).  Essentially, he boils down the Lopez Torres case to a simple question of access to the general election ballot – and brushes aside the associational rights aspects of the respondents’ claims. 

Although troublesome, one can hope that the Court’s analysis in Lopez Torres will not have much bearing on cases concerning voting rights more generally, such as the Crawford case.  Lopez Torres focused almost exclusively on the party nomination process.  Further, even in this stage, the principle opinion and concurrences seem to acknowledge that at least some “state-imposed impediments” on voting are unconstitutional, such as an almost two-year wait on a change of party registration[2] or a prohibitive primary election filing fee.[3]  We will have to wait and see if the Lopez Torres decision plays much of a role in deciding future cases involving the right to vote.  Stay tuned.

(The Legal Center, along with law professor Dan Ortiz, filed an amici brief on behalf of itself, political scientists Thomas Mann and Norman Ornstein, and the Reform Institute, supporting the respondents in Lopez Torres.  The Legal Center, with law professor Charles Ogletree, also filed an amici brief on behalf of more than two dozens scholars in the Indiana Voter ID cases, now pending before the Supreme Court.) 

[1] Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002).

[2] Kusper v. Pontikes, 414 U. S. 51, 57 (1973).

[3] Bullock v. Carter, 405 U. S. 134 (1972).

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