December 26, 2006
By James Sample and Frederick A.O. Schwarz
New York’s Constitution requires that the voters—not unelected political party leaders—select the state’s principal trial court judges. In spite of that, for more than 80 years, party leaders have employed a complex convention scheme to select major party nominees and rob voters of a real choice for Supreme Court justices on Election Day.
Gov.-elect Eliot Spitzer said it best when he described the convention system as “the last vestige of real patronage in the political party structure.” This year, two federal courts described it more bluntly: unconstitutional. New York now has a historic opportunity to right this wrong.
The courts held that the conventions violate the First Amendment because they deprive New Yorkers of their right to cast a meaningful vote, and prevent qualified candidates from competing for their own party’s nomination. The courts found that through the conventions, political party leaders unconstitutionally “arrogated to themselves a choice that belongs to the people.” Candidates, the courts ruled, simply “must be permitted an effective means of appealing to voters when it counts.”
Some people think an appointment system is ultimately the best solution. The debate over appointments versus elections is a challenging matter about which reasonable people disagree.
But two things are certain. First, changing to an appointment system would require a multiyear constitutional amendment process. Second, while there are pros and cons to elections and appointments, New York’s conventions represent the worst of both and the best of neither.
Under court order, the conventions will be replaced with open primary elections until New York passes a constitutional scheme. Some groups want the state Legislature to merely tinker with the convention system. Their proposals recommend cosmetic changes to a system that 49 states categorically reject, a system the federal courts find unconstitutional and a system that rank-and-file voters rightfully distrust.
Their revisions include reductions in the number of delegates who attend the conventions and reductions in the signatures required to run for convention delegate. These may make sense, but they ignore the heart of the federal court rulings—the rank-and-file voter.
Indeed, the courts explicitly stated that the key proposal in such plans, judicial screening panels to advise the conventions, was simply “not relevant” to the constitutional issue.
The state Senate has other ideas. It also has the leverage of the new status quo and the constitutional high ground. In February, the Senate passed a bill mirroring the direct primaries ordered by the federal court. That legislation had the support of every Republican and four Democrats in the Senate. Sen. John A. DeFrancisco, the chair of the Senate Judiciary Committee who sponsored that bill, also has suggested a second very sensible solution that passes the constitutional test.
His alternative plan 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.
Lawmakers also should sharply reduce the size of judicial districts from which Supreme Court justices are elected. Smaller judicial districts would reduce campaign costs, improve geographic diversity and significantly increase opportunities for candidates of color. These are not merely passing concerns. According to the 2nd Circuit, New York’s conventions have “to put it mildly, failed to fully effectuate the state’s goals as to geographic and racial diversity.” That is stating it mildly indeed.
When the lawsuit challenging the conventions began, five of New York’s 12 judicial districts (including the 3rd, in which Albany is located) had a combined 81 authorized seats on the Supreme Court bench, but not one single minority justice. Perpetuating such an abject failure is simply unacceptable. That is one reason why seven minority bar and legal organizations from around the state have urged the legislature to let qualified candidates gain a primary spot through petitioning. Earlier this month, in testimony before the Assembly Judiciary Committee, the Women’s Bar Association of the State of New York added its voice to the growing chorus supporting petition-based ballot access.
When qualified candidates, with genuine voter support, are prevented from even accessing the ballot the system is not just anti-democratic, it is un-American. Fittingly, the federal courts ruled the conventions violate the First Amendment. It will take rank-and-file access, not tinkering, to change that.