ACSBlog: The Blog of the American Constitution Society

By James Sample, Associate Counsel in the Democracy Program of the Brennan Center for Justice at NYU School of Law

Last week, the United States Court of Appeals for the Second Circuit struck a major blow for democracy. In a unanimous opinion authored by Judge Chester Straub and joined by Judges Sonia Sotomayor and Peter W. Hall, the Second Circuit affirmed-in its entirety-the decision of U.S. District Court Judge John Gleeson granting a motion for preliminary injunctive relief in the case of Lopez Torres v. New York State Board of Elections.

Together with pro bono counsel, Arnold & Porter LLP and Jenner & Block LLP, the Brennan Center for Justice at NYU School of Law represents the plaintiffs in the case. We argued, and the courts found, that New York's unique convention system-used by the political parties to select their nominees for New York's trial court of general jurisdiction-deprives New Yorkers of their right to cast a meaningful vote for trial court judges and deprives qualified candidates, who lack the backing of entrenched party bosses, from competing for their own party's nomination.

Back in early July, Daniel Kotler and I posted point-counterpoint columns on this site addressing the Lopez Torres case. Those earlier columns explain the details of both the litigation and New York's system. This posting instead only briefly summarizes the present legal landscape and then focuses on possible next steps.

New York somewhat oddly refers to its trial court of general jurisdiction as its Supreme Court. But that oddity is where the anomalies begin, not end. New York is one of 33 states that elects its trial court judges in contestable elections. Every single one of the other 32 states allows candidates to compete for their party's nomination (or a place on a nonpartisan election ballot) by filing notice, paying a small fee, or gathering signatures directly among party voters. Not so in New York. Although the New York Constitution guarantees that "the justices . . . shall be chosen by the electors [i.e. the voters] of the judicial district in which they are to serve," justices are selected through an opaque, de facto appointment system controlled by political party bosses. As current Democratic gubernatorial candidate Eliot Spitzer stated this week, the system "is the last vestige of real patronage in the political party structure."

The Second Circuit found that "[a]ll of the evidence presented, and accepted by the District Court, reduces to this bottom line. Through a byzantine and onerous network of nominating phase regulations . . . New York has transformed a de jure election into a de facto appointment." At first glance, readers who favor appointment systems for judges may not consider that transformation problematic. But it is critically important to keep in mind that New York's constitution guarantees New York's voters an election. As Judge Gleeson's opinion states: "A state may decide whether or not voters will be the best choosers of judges. But it may not say one thing - "The justices of the supreme court shall be chosen by the electors," N.Y. Const. art. VI § 6(c) - and do quite another. . . . Put simply . . . the state may not pass off the will of the party leaders as the will of the people."

Pursuant to the rulings, beginning with the 2007 election cycle, unless and until the New York legislature acts to the contrary, New York's judicial conventions will be replaced with open primary elections. In other words, absent U.S. Supreme Court review and reversal, the ball is in the New York legislature's court. This, however, is no ordinary policy debate. The rulings make clear that a constitutional mandate is at stake. Thus, it is imperative that the legislature address the specific interests that the rulings emphasize-those of voters who were denied a meaningful voice, and of candidates who were excluded by the party boss system.

The Second Circuit's ruling has been broadly hailed as a victory for democracy by reform groups, the media, and by progressive thinkers in both major parties. In the succinct words of the New York Daily News, the decision is a "death sentence for boss rule." There is less agreement, however, as to longer-term legislative solutions. Some leaders, including former New York City Mayor Ed Koch, are advocates of traditional open primaries. Others, including a statewide commission chaired by Fordham Law School's John Feerick, had recommended modifications to the judicial convention system even prior to Judge Gleeson's decision. Certain leaders and candidates, including Mr. Spitzer, are now pushing for appointive systems, which could only be brought about via a difficult, multi-year constitutional amendment process. Finally, others, including Republican State Senator John DeFrancisco, have raised the possibility of converting the judicial convention system into one with the timing and open access of New York's state-wide designating convention system. Under such a system, candidates without party leader backing, but with significant support, could earn a place on a primary ballot either by meeting a threshold level of delegate votes at the judicial convention, or by obtaining a required number of petition signatures from voters.

In addition to the proposals above, the legislature might increase New York's twelve existing judicial districts to as many as 62-one for each of New York's counties, with representation based on the principle of one-person one-vote. Such a measure would reduce the costs of campaigns; increase racial diversity on the bench; and dramatically improve the representation of less populous counties-which are currently subject to the dictates of party bosses from more populous counties in their judicial district.

The Brennan Center's position is simple. Whatever else the legislature may do, it must start first by seriously addressing the specific constitutional infirmities identified by Judge Gleeson and the Second Circuit. The decisions provide a combined 152 pages of analysis that will serve as guideposts for reform. For example, the rulings specifically credit the statement of the defense's own witness that due to the sheer complexity, timing, and volume of the hurdles in the system "the idea that an individual candidate [without the backing of the party machine] would go out and recruit delegate candidates and run delegates . . . is not the system and it twists the design of the system on its head." Crediting such a statement is not an indication that nip and tuck reforms to the status quo will be sufficient.

Incremental reform measures are helpful, but New York needs the best of those measures and more. The state constitution requires a system in which voters have a meaningful say, and in which candidates who were previously excluded have genuinely meaningful access to the electorate. It is well past time to replace the last vestige of Boss Tweed and Tammany Hall with a system marked by transparency, democracy, and openness of access. New York's constitution requires it. Thanks to Judge Gleeson and the Second Circuit, the requirement now has serious teeth.