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Brennan Center Files Lawsuit to Reform Supreme Court Selection System In New York State

March 18, 2004

For Immediate Release
March 18, 2004

Contact Information:
Scott Schell, 212 998–6318
Natalia Kennedy, 212 998–6736

Brennan Center Files Lawsuit to Reform Supreme Court Selection System in New York State
Current System Keeps Challengers Off the Ballot Gives Party Bosses Complete Control

Today the Brennan Center for Justice at NYU School of Law filed a lawsuit in federal court in Brooklyn charging that New York States system for selecting Supreme Court justices is unconstitutional and violates the rights of voters, candidates, and political party members. (Supreme Court in New York State is the trial court of general jurisdiction.) The suit asserts that by undermining the right to vote the current selection system violates the First and Fourteenth Amendments to the federal Constitution.

The filing asks the court to declare the current system unconstitutional and to provide a 90-day period from the courts ruling for the Legislature to replace that system. In the absence of legislative action, the complaint seeks a court order establishing a new system for Supreme Court selection that includes (a) direct primary elections for Supreme Court, and (b) the opportunity for candidates to petition onto the primary ballot with a reasonable number of signatures.

For more than 150 years, New Yorks constitution has provided that, The justices of the supreme court shall be chosen by the electors [i.e., the voters] of the judicial district in which they are to serve. Todays court filing documents that the election system for New Yorks Supreme Court justices is a sham, denying voters any meaningful role in the selection process, and blocking qualified candidates from seeking positions on the bench. Instead of the elective system mandated by the state constitution, New York selects its Supreme Court justices through a de facto appointment system, one that is dominated by the county leaders of the two major political parties. The complaint alleges that, each countys Democratic or Republican leaders, rather than the rank-and-file party members and voters, choose who will be a justice and when.

New Yorks method of selecting Supreme Court justices is grounded in uniquely closed judicial nominating conventions: Of the 33 states that elect judges to their trial courts of general jurisdiction, New York is the only state that requires the nomination of candidates through a convention system.

Frederick A. O. Schwarz, Jr., attorney for the plaintiffs and senior counsel at the Brennan Center, explained, All too often under the current system, a candidates loyalty to the party leadership is much more important in obtaining a place on the general election ballot than the candidates legal experience, ethics, or integrity. The result is a severely weakened judiciary that does not inspire public confidence in its ability to dispense justice impartially and fairly.

The current selection system robs voters of their constitutional right to choose their Supreme Court justices, and destroys their faith in the judiciary, said Jeremy Creelan, attorney for the plaintiffs and Brennan Center associate counsel. By shining a bright light on the sham election system, the lawsuit filed today seeks to reform the system within the existing constitutional framework.

The lawsuit filed today is not inconsistent with a variety of valuable reform initiatives emerging in the state, including proposals for merit selection of Supreme Court justices and for judicial screening panels. The Commission to Promote Public Confidence in Judicial Elections (appointed by Chief Judge Judith S. Kaye and chaired by John Feerick), the Fund for Modern Courts, and the Association of the Bar of the City of New York, each are working to improve the quality of justice in the state and to restore public faith in the courts. While certain of these proposals, such as merit selection, would require constitutional amendments involving legislative approvals over a lengthy period, the Brennan Center’s lawsuit seeks to reform the current system now within the existing constitutional framework.

“As a plaintiff in this lawsuit, Common Cause seeks to end the current system of Supreme Court selection that has dramatically eroded public confidence in our courts,” explained Rachel Leon, Executive Director of Common Cause/NY.

The track record of New Yorks major party leaders in selecting Supreme Court candidates would make the former leaders of the Soviet Union envious. In the eight-year period from 1994 through 2002, 568 Supreme Court candidates have been nominated at Democratic or Republican conventions around the state. Not a single challenger to the party leaders handpicked candidates managed to secure a nomination for the general election.

The explanation can be found in a series of structural obstacles faced by challengers, each obstacle aimed at ensuring that county party leaders not voters choose the delegates to the judicial nominating conventions. In the Second Judicial District, encompassing Brooklyn and Staten Island, for example, an outside challenger seeking to become the Democratic candidate for Supreme Court would have to collect a minimum of 12,000 signatures from registered party members evenly distributed across 24 Assembly Districts and two counties just to secure the possibility of electing the delegates needed to win at the judicial nominating convention. That number of signatures is more that 50% greater than the 7,500 signatures needed to obtain a ballot line to run for mayor of New York City a much larger jurisdiction as a major party candidate. This requirement also dwarfs the 4,000 signatures required for a major party candidate seeking to run for countywide Civil Court judgeships in New York City.

One of the central burdens on challenger candidates is the requirement that numerous judicial delegates must be selected from each one of the often numerous Assembly Districts within a single judicial district. For a challenger hoping to beat the candidate of the party leaders, that means organizing, petitioning, and running slates of several delegate candidates in every Assembly District across an entire judicial district. In the Second Judicial District, there are 24 Assembly Districts.

In this system where the candidates of party leaders almost never face opposition, it is not necessary for judicial delegates even to appear on the ballot. The complaint alleges that, in the counties of Albany, Erie, Nassau, Suffolk and Tompkins, not a single judicial delegate of the major parties has appeared on a ballot since 1999. Over that same period, in New York City only 14% of the 4,825 judicial delegate candidates selected by the two major parties appeared on any ballot. Making matters even worse, unlike in presidential primary elections, there can be no indication on the ballot of the allegiance between the named judicial delegate and a specific Supreme Court candidate.

On four separate occasions, Margarita Lpez Torres, the lead plaintiff in the suit filed today, sought the Democratic Party nomination for Supreme Court in Brooklyn. For reasons entirely unrelated to her judicial qualifications or experience, Ms. Lpez Torres failed to get her partys backing and thus the opportunity to run as a Democratic candidate on each occasion. Judge Margarita Lpez Torres was elected to the Civil Court in Brooklyn in 1992, where she now is the third-longest-serving judge on that court. Despite widespread voter support in 2002, Judge Lopez Torres received more votes (200,710) for Civil Court than any of the Democratic Partys candidates for Supreme Court in Brooklyn the current system has prevented her from having any opportunity to obtain her partys nomination for Supreme Court.

If Judge Lopez Torres were running for any elective office in New York State other than Supreme Court justice, the absence of support from party leaders would not have proved fatal to her candidacies. For every other elective office in New York State, a place on the general election ballot can be secured through winning a primary election. And candidates for statewide office U.S. senator, governor, lieutenant governor, attorney general, and state comptroller have multiple routes to earn a place on a primary election ballot, whether by securing 25% of their convention delegates votes or by direct petitioning among voters. Similarly, judges of the Civil Court of the City of New York are chosen through a direct primary election between candidates who can petition onto the ballot. Only candidates seeking to become Supreme Court justices are limited exclusively to a nominating convention, where the support of a majority of delegates is required, as the sole avenue to compete in a general election.

In Supreme Court elections, the absence of democracy carries over from the party nominating process to the general election. Almost two thirds (62%) of all New York State voters face general elections for Supreme Court that are, more often than not, literally uncontested with respect to candidates from the two major parties. In all, more than three quarters (76%) of the Supreme Court elections from 1990 through 2002 across the state were either uncontested or wholly uncompetitive (i.e., the losing candidate garnered less than 80% of the winning candidates vote total).

For more information, please contact Scott Schell at (212) 998–6736, or Natalia Kennedy at (212) 998–6736, or Jeremy Creelan at (212) 992–8642.

View the complaint.
View supporting statement by District Attorney Charles J. Hynes

The Brennan Center for Justice at NYU School of Law develops and implements a nonpartisan agenda of scholarship, public education, and legal action that promotes equality and human dignity, while safeguarding fundamental freedoms. Please contact Natalia Kennedy at (212) 998–6736 to schedule interviews or for more information. Please also visit