SCOTUS Decision in NYS Board of Elections v. Lopez Torres

The Supreme Court handed down its decision today in NYS Board of Elections v. Lopez Torres. Here is the statement released by the Brennan Center:

This morning plaintiffs’ counsel issued the following statement in response to the decision issued today by the U.S. Supreme Court upholding New York’s system of selecting State Supreme Court Justices (trial judges in New York). The case is New York State Board of Elections v. López Torres. The Brennan Center for Justice at NYU School of Law, together with co-counsel Arnold & Porter LLP and Jenner & Block LLP, represents the plaintiffs in the litigation.

"New York has compiled an 87-year record of anti-democratic exclusion, unaccountability and corruption in judicial selection. These problems will not go away because of the U.S. Supreme Court’s decision," said Kent Yalowitz, Partner at Arnold & Porter, LLP.

"The plaintiffs are considering further litigation options. In the meantime, we urge the political, civic, and bar leaders who stood up for reform to continue to stand with us, demanding legislation that will end the closed process, which has, for too long, undermined public confidence in New York's courts," said Frederick A.O. Schwarz, Jr., Senior Counsel, Brennan Center for Justice at NYU School of Law.

“As the concurrences by Justices Stevens and Kennedy make clear, the Supreme Court’s decision should not, by any means, be read as endorsing New York’s flawed system,” said Surrogate Judge Margarita Lopez Torres, the lead plaintiff in the case.

Read our archives to learn more about the case.

Post-Argument Press

We apologize for the radio silence on last week's Supreme Court argument in Lopez Torres v. NYS Board of Elections. Justice shouldn't take a holiday, but sometimes ReformNY must.

The Daily News argues that despite the U.S. Supreme Court's questions and comments suggesting that they are "constitutionally comfortable" with New York's judicial selection process, it is "appalling" to approve a system that denies New Yorkers any meaningful say over who becomes a judge on the state's most important trial court.

The Times Union notes that despite New York's "broken" and "undemocratic" process, the U.S. Supreme Court seems inclined to find New York's judicial conventions constitutional. The editorial argues that if the justices lived in New York, they "might have another view."

And the Buffalo News states that New York's "corrupted boss-driven apparatus provides a window into the entire mechanism of [its] state government." The editorial states that "it is all but impossible to win a place on the ballot without the approval of the party boss, and the boss's evaluation is based in large part on how much money you give him."

The Brennan Center Visits the Supremes

Later today, the Brennan Center's Fritz Schwarz will ask the U.S. Supreme Court's nine Justices to uphold the Second Circuit's decision finding New York's method of electing its state Supreme Court judges unconstitutional. To get an idea of what Fritz will be telling the Court, look here, here and here. In short, New York's elections for Supreme Court judges are a sham, controlled by party bosses at the expense of New York voters.

We'll keep you posted on what happens.

And since I'm on the topic of the Supreme Court, I would be remiss if I did not note that the Brennan Center will be coordinating amicus briefs to the Supreme Court for the appellants in Crawford v. Marion County Election Board, challenging the constitutionality of Indiana's law requiring all citizens to present photo ID as a condition of voting. To learn about why restrictive voter ID laws like those passed in Indiana could end up disenfranchising millions of legitimate voters, read this.

Count Down to Lopez Torres Argument

From the Times: "In defending the system, New York State argues that the role of political parties in elections must be respected. In this case, however, it is New York State’s law that is trampling on the parties — unless you consider party membership confined to the back room. The law forces the parties to choose their judicial nominees through a Byzantine system that ensures that their actual members, the voters, do no more than rubber-stamp the decisions that are actually left up to the party bosses."

From the Buffalo News, quoting Brennan Center Counsel James Sample: "It’s a system that crushes internal dissent within the parties and entrenches one faction — the local party leaders — against the membership of the party. This is a case about Soviet- style democracy."

Also check out today's feature in the New York Law Journal (registration required).

The Run-Up to Wednesday's Supreme Court Oral Argument

Here's more on this week's argument in Lopez Torres v. NYS Board of Elections and the upcoming court session.

Our own James Sample gets at the heart of the issue on Judicial Reports: "[I]t's about stakeholders in a corrupt status quo against stakeholders in a functioning democracy."

And the Times adds its voice to the chorus of those supporting affirmance: "On Wednesday, the court will hear arguments in another voting case of particular interest to New Yorkers, a challenge to the use of [New York's] judicial conventions, undemocratic institutions dominated by party hacks, to select state court judges. Lower courts rightly held this highly undemocratic system to be unconstitutional."

1974 vs. 2007? Not So Different

In celebration of its 150th Birthday, the Times Union has for the last year been reprinting select editorials from the past. It makes for great historical reading --providing the paper's thoughts on everything from the "Korean Crisis" to the Death of John Lennon to Bush v. Gore. For now, they can all be found here. Check them out while you can -- it looks like the series will end in a couple of weeks.

One editorial of particular interest to ReformNY is from November 7, 1974, just as the Democrats were about to take control over the Assembly (believe it or not, they have not controlled that chamber forever!), and after New Yorkers elected Hugh Carey, the first Democratic Governor in 16 years. The Times Union had a wish list for the new Governor. Below are the first four "most desirable" items the Times Union hoped the new Governor and Legislature would tackle:

Public financing of election campaigns.
Full financial disclosure by public officials.
Reform of the state's judicial system.
More open decision making in state government.

The more things change . . . .

At Least One More Year of Boss Rule Selection for New York Courts

This morning's Buffalo News featured a piece illuminating a probable deal between Democratic and Republican party leaders in Erie County to effectively deny voters a real choice in two of the three state Supreme Court races that will take place there this fall. The party leaders are poised to cross-endorse Democrat Rose Sconiers and Republican Frank Caruso, which means that their names will appear on both party lines on the ballot, in effect assuring them reelection.

Cross-endorsements are just one additional, after-the-fact aspect of the complex ways in which New York's system of judicial selection lacks accountability. The complex convention process for judicial nominations that precedes a cross endorsement is even worse. That is why the Second Circuit court of Appeals aptly described it as "byzantine"...and unconstitutional. Next week, the U.S. Supreme Court, which granted review, will hear the case. The Brennan Center's Fritz Schwarz will argue the case for the plaintiffs who are systemically denied a voice in the choice of their own party's standard bearear.

The Daily News expressed our thoughts exactly in an editorial this morning: this year "must be the end of boss rule over New York's courts."

Read a collection of "best-of" excerpts and quotes from the extraordinarily powerful amicus briefs submitted by groups on the right, left, and in-between.

With Briefing Complete, Next Stop: Supreme Court

In response to the respondents' Supreme Court brief and the numerous, diverse and extensive friend-of-the-court briefs submitted supporting affirmance, the few defenders of New York's status quo judicial conventions filed their reply briefs last week in the litigation challenging the constitutionality of New York's judicial nominating conventions.

With briefing complete, all that remains is the Supreme Court hearing on October 3rd, which will feature the Brennan Center's Fritz Schwartz arguing that New York's judicial selection process effectively precludes rank-and-file party members from playing any meaningful role in determining their own party's standard bearer.

The reply briefs can be found here.

Senator DeFrancisco to Speak on Judicial Selection at NCSL Annual Meeting

Senator John DeFrancisco of New York's 50th District will be in Boston tomorrow on a panel at the National Conference of State Legislature's Annual Meeting. DeFrancisco is slated to join researchers from the American Judicature Society and the Institute for the Advancement of the American Legal System, along with other legislators and judges, in a discussion of judicial selection methods around the country.

DeFrancisco, who chairs the Senate Judiciary Committee, has been a key player in conversations about how to bring the state's system of selecting Supreme Court judges in line with the decision invalidating New York's judicial nominating conventions.

The Senator sponsored a bill that is modeled on the system of conventions and primaries already in place for all statewide elected offices in New York. Designating conventions would occur in the spring. All Supreme Court candidates with more than 50 percent of the delegate vote would be designated as the party's potential nominees. Candidates receiving 25 percent of the delegate vote would earn an automatic spot on a September primary ballot. Most fundamentally, candidates with grass-roots support could force a primary by gathering petition signatures among the voters.

That system, familiar to all in New York state politics, gives parties and their leaders a role -- but if a candidate can muster support, it gives rank-and-file voters the final say.

Along with open primaries, DeFrancisco's model would rectify the problems inherent in the current system, so we look forward to hearing what he has to share with the NCSL audience!

2007 May See New York's Last Supreme Court Nominating Convention

In a post about petitions filed for this year's primaries, Liz Benjamin at the Daily News reminds us that "[t]his could be the last time state Supreme Court nominees will be selected via the party-leader controlled convention route, which has been deemed unconstitutional by state courts and is headed for the US Supreme Court."

While we offer no predictions, we certainly hope that the Supreme Court affirms the unanimous panel decision of the U.S. Court of Appeals for the Second Circuit. Along with the Brennan Center, a broad and diverse group of amici from around the state and around the nation have argued to the Supreme Court that in addition to the system's constitutional flaws, New York's byzantine process is the "worst of all worlds" when it comes to judicial selection. (quoting the brief of City of New York; New York State Bar Association; Bar Association of the City of New York).

Brennan Center and Friends of the Court File Briefs before U.S. Supreme Court Seeking Affirmance of Decisions Enjoining New York’s Judicial Selection

On Friday, along with pro bono partners Arnold & Porter LLP and Jenner & Block LLP, the Brennan Center filed its brief urging the U.S. Supreme Court to uphold the unanimous decision of the Second Circuit enjoining New York’s uniquely burdensome multi-state system for selecting state Supreme Court nominees. The system purports to grant voters a role in electing trial court judges, but in reality, local party bosses control the process at the expense of their party’s rank-and-file members, who are precluded from playing any meaningful role in determining their own party’s standard bearer.

In its brief, the Brennan Center urged the Court to tear down one of the last vestiges of Tammany Hall’s boss control of New York State government arguing that “New York’s state-imposed nominating process creates a locked gate, to which those in control of the party hold the only key.” In urging affirmance of the Second Circuit decision, the Brennan Center’s brief assails a system that “vests de facto judicial appointive power in unaccountable party bosses, thereby creating a fertile source for corruption, decreasing confidence in its courts, impeding the search for excellence, and failing to achieve a genuinely representative judiciary.” See the Brennan Center's website for more information on Lopez Torres v. NYS Board of Elections.

The Brennan Center was supported by a broad and ideologically diverse cross-section of legal, political, academic, and reform organizations and individuals from across the country who filed amicus briefs offering unique perspectives on the operation of New York’s scheme, and supporting affirmance of the Second Circuit’s decision. Eleven briefs were filed on behalf of the following signatories:

Brooklyn District Attorney Charles J. Hynes: “I am persuaded, from my long experience as a prosecutor, voter, citizen, and lawyer that…the problems of corruption in Brooklyn involving Supreme Court judgeships are not attributable to a single corrupt party boss. Rather, as the public record demonstrates, corruption in judicial politics has a long history paralleling the long history of the judicial district convention system,” Hynes wrote. In addition to noting the statewide nature of the problem, Hynes strikingly explains to the Court that the “corruption brought about by the architecture of the Supreme Court nomination system does not end once the judge is tapped by party leaders to serve on the Supreme Court, or when the judge is elected. It often continues, in the form of corruption in the administration of justice.”

John Dunne, former Assistant United States Attorney General for Civil Rights (1990-1993) under President George H.W. Bush and former NY State Senator: “Mr. Dunne’s own experience is illustrative. Despite his record of dedication to the Republican Party and his demonstrated expertise in the area of judicial elections, he has never been put forward as a delegate candidate, even though he had asked repeatedly for the opportunity. Instead, he has been passed over by local bosses in favor of slates of delegates who can be relied upon to rubber stamp the choices of the “leadership.” These slating decisions are unreviewable. If a State Senator with 24 years’ service to his party can be shut out of the nomination process entirely, there is little hope for rank-and-file party members who do not hold elected office.”

Washington Legal Foundation: “If New York were to adopt a law declaring that Supreme Court Justices are to be popularly elected, but only the leaders of the most powerful political party within each judicial district are allowed to vote in that election, the law would surely amount to an unconstitutional abridgement of voting rights.....Based on the detailed (and uncontested) factual findings of the district court, the New York election system has exactly the same effect on voting rights.”

City of New York, the New York State Bar Association, Association of the Bar of the City of New York, and the Fund for Modern Courts: “As a policy matter, the current system results in the worst of all worlds: New York State effectively has an appointive system in the guise of an electoral system, but an appointive system of the worst kind – a system in which judges are appointed by party leaders who are unaccountable to the public and who base their choices on political loyalty and party credentials, rather than on professional judicial qualifications.”

New York County Lawyers Association: “While NYCLA prefers a merit-based appointment system for selecting New York Supreme Court Justices, it is imperative that the current, unconstitutional convention system for selecting Supreme Court Justices not be permitted to continue. The convention system is neither democratic, nor transparent. NYCLA therefore urges this Court to affirm the judgment of the United States Court of Appeals for the Second Circuit so that public confidence in the judiciary, which is a cornerstone of a free society, can be restored.”

Asian American Legal Defense and Education Fund, the Puerto Rican Legal Defense and Education Fund, the Hispanic National Bar Association, the Puerto Rican Bar Association, the Latino Lawyers Association of Queens County, the Center for Law and Social Justice at Medgar Evers College, the Amistad Black Bar Association of Long Island, and the Rochester Black Bar Association: “Minorities seeking to become supreme court justices in New York are not served by a closed, back-door system built on cronyism and political favors. No diverse, fair system can be built by such means. As a blue-ribbon task force on diversity in the judiciary found fifteen years ago, opening the system is “essential to improving diversity on the bench.”

Hon. Ed Koch: “New York’s convention system for electing Supreme Court Justices has gone largely unchanged for the forty-plus years that I have been familiar with it. The undemocratic boss run system that I observed in the 1960’s appears to operate no differently today than it did back then,” Koch wrote the court. He added, “Justices of the Supreme Court in New York are not elected, even though their names are on the ballot. They are selected.”

American Civil Liberties Union and New York Civil Liberties Union: "[H]aving chosen to elect Justices of its State Supreme Court, New York is obligated by the federal Constitution to provide for a fair and accessible electoral process. This it has not done."

Thomas Mann, Norman Ornstein, the Reform Institute and the Campaign Legal Center: “Although New York’s judicial selection scheme genuflects at the altar of democracy, it prays to a very different god: patronage.”

“By effectively lodging the power to control the nomination of state Supreme Court Justices in local political party leaders, New York’s mandated system makes state Supreme Court Justices—and many below them on the judicial ladder—beholden to local party officials. The judges, their law clerks, and other judicial employees become mere patronage spoils.”

Former New York Judges and the American Judicature Society: “The current convention system undermines rather than enhances public confidence in the judiciary.”

“The current convention system thus fails—at the crucial juncture when the nomination is being bestowed—to provide constitutionally required assurances to the public of the nominees’ integrity, competence, impartiality, and quality, and of the integrity of the selection process itself.”

Prominent Constitutional and Election Law Professors: “Insofar as elections promote vibrant political parties, New York State’s regime usurps the autonomy of political parties to structure decisionmaking for themselves. In all, a worse system for electing judges is difficult to fathom.”

Lopez Torres v. New York State Board of Elections, Supreme Court Edition

Stay tuned tomorrow for the Brennan Center's brief to the U.S. Supreme Court in Lopez Torres v. NYS Board of Elections. Also be on the lookout for some really hard-hitting and insightful amicus briefs in support of affirmance.

Spitzer Proposes Judicial Reform

This has truly been a busy week for Governor Spitzer, with a campaign finance reform proposal on Monday and plans to overhaul redistricting and judicial elections yesterday.

While the Brennan Center takes no position on the Governor’s long-term plan for an appointed judiciary, we welcome his proposal for interim reform of judicial selection.

The interim proposal, which would go into effect while the so-called "merit selection" constitutional amendment makes its way through the approval process, would:

• Form Independent Judicial Qualifications Commissions to evaluate candidates and submit a list of qualified individuals;
• Create alternative ways for judges to get nominated; and
• Provide public financing for Supreme Court candidates.

We applaud the Governor for recognizing, along with two federal courts, that we need immediate reform to resolve fatal constitutional flaws in the sham elections now held for New York's trial courts. Doing so will not only respect voters' rights but also contribute to a fair and impartial judiciary. As our executive director Michael Waldman said:

The Governor’s plan, along with proposals made by Senator John DeFrancisco, will ultimately strengthen New York’s judiciary. Under the current system, many well-qualified lawyers are never even considered for judgeships because they lack ties to party leaders. Allowing all well-qualified candidates to compete for their party’s nomination will improve confidence in our courts.

We Must Go Beyond "Modest" Tinkering on Judicial Reform

From Crain's New York Business:

On other matters, Judge Kaye defended the current convention-based system of choosing judges, saying only modest reforms are needed, such as modifying the conventions to allow for more candidates to participate and winning legislation requiring judicial screening committees.

Her position differs sharply from many groups -- namely the Brennan Center for Justice, the New York Bar Association, the Fund for Modern Courts -- who support fundamental reforms including merit selection.

While the Brennan Center has publicly supported judicial pay raises, this article misrepresents the Center's position on reforming New York's selection process for state Supreme Court judges. The Center is agnostic as to the question of appointments versus elections in the abstract.

Where, however, as in New York, elections are required under the state constitution, the Center's unequivocal position is that voters and candidates are entitled to more than a sham that merely masquerades as an election - which is what New York has now. The Center's position is that fundamental democratic reforms - rather than the "modest" tinkering Judge Kaye references - are necessary both as a matter of law and policy.

More on Judges from the Poughkeepsie Journal

From today's Poughkeepsie Journal:

A decision by the nation's highest court to review New York's faulty system for selecting candidates for state Supreme Court justice means the process will, regrettably, continue for at least one more election. When it rules next fall, the U.S. Supreme Court should uphold the view of two other federal courts that the method of selecting candidates for the state's trial courts is unconstitutional and must be changed.

The state needs a process that ensures only the most qualified candidates can become judges in the state's trial courts and still gives voters a voice in who serves on the bench. Neither of those objectives are guaranteed under the current setup...

Regardless of what the federal court ends up deciding, it's clear the existing method for selecting state Supreme Court judges needs fixing.

Though it’s an uphill battle to get powerbrokers to give up their influence over the judiciary, we urge lawmakers to do away with the corrupt closed conventions and to provide qualified candidates who have the support of their party's rank-and-file with meaningful access to the political process.

Buffalo News on "The Unholy Hybrid"

From the Buffalo News, in a part of the state where it’s a balmy 2 degrees (negative 17 with the wind chill):

The unholy hybrid now used to select New York trial court judges neither respects the merit of the candidates nor listens to the voice of the people. Two levels of the federal judiciary have ruled that the system is unconstitutional. That should have been the end of it...

Judges hold a great deal of power in our society. They should owe their elevation to either their qualifications or their public support, not to the high-placed friends they’ve had to buy for themselves along the way.

We wholeheartedly agree.

More thoughts on Lopez Torres

From today’s Daily News:
New York's notoriously rigged, boss-driven system for electing judges must go.

From today’s Legislative Gazette:
“Whoever the delegates appoint as the Supreme Court candidates is who will run in November,” said Chairman of the Senate judiciary committee, Sen. John DeFrancisco, R,I,C,WF-Syracuse. He said the process is unconstitutional because it prevents anyone but the convention-nominated candidate from running.

From Saturday’s Times Union:
It's difficult to fathom how the high court could fault Judge Gleeson's logic, or the patent disenfranchisement of New York voters by party leaders.


The Brennan Center represents the plaintiffs in Lopez Torres v. New York State Board of Elections, and you can check out opinions and court filings on our website.

Newsday: We still need reform of judicial elections

This morning’s Newsday has a great editorial explaining the undemocratic nature of New York’s judicial conventions and encouraging state officials to support reform of the system no matter what happens in the U.S. Supreme Court this fall.

Here’s a peek:

So despite the trappings of elections, party bosses control the process from top to bottom. They effectively choose the largely anonymous delegates, who are rubber stamped by voters. The delegates then rubber stamp the bosses' preferred candidates, ensuring them a place on the ballot. And in jurisdictions dominated by one party, those candidates often run unopposed.

That's tantamount to appointment, but by unelected, unaccountable party bosses.

If New York wants to continue electing State Supreme Court justices, officials should provide some realistic route onto the ballot for qualified candidates not favored by a political party. Albany should make sure that happens, regardless of how the U.S. Supreme Court ultimately rules.

Cert Granted in Lopez Torres

Today, the U.S. Supreme Court granted a writ of certiorari in the Lopez Torres litigation that lawyers from the Brennan Center argued, along with pro bono counsel Arnold & Porter and Jenner & Block. This means that the Court will hear the case.

Senior counsel for the Brennan Center Fritz Schwarz had this to say:

Two federal courts, including a unanimous panel of the U.S. Court of Appeals for the Second Circuit, have said that New York’s corrupt conventions violate the First Amendment. New York’s Constitution is clear in its requirement that voters – not unelected political party bosses – select nominees for the Supreme Court bench. We look forward to the Supreme Court hearing on this case, and hope that the Court will uphold the lower court rulings and end forever New York’s sham party boss system.

In August, the Second Circuit Court of Appeals affirmed the District Court’s ruling that the convention system used by political parties in New York to select judicial nominees deprives New Yorkers of their right to cast a meaningful vote for trial court judges.