Opposition Brief — New York State Bd. of Elections v. López Torres

No. 06-766 . 7. Yon We

TAT IS VERS LTT ATES BOA TTT II ES APSR CT SRE. ALAA

1 OrbiGe Oe 1 CoERM i

IN THE | SUPREs.. COURT, U.S. _!

Supreme Court of the United States —

New YORK STATE BOARD OF FLECTIONS, ef ai,

Petitioners,

V.

MARGARITA LOPEZ TORRES, ef al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF IN OPPOSITION

PAUL M. SMITH FREDERICK A.O. SCHWARZ, JR.

JENNER & BLOCK LLP DEBORAH GOLD3ERG*

601 13" Street, N.W. JAMES J. SAMPLE

Washington, D.C. 20005 BRENNAN CENTER FOR JUSTICE

(202) 639-6000 AT NYU SCHOOL OF LAW

161 Avenue of the Americas

JEREMY M. CREELAN 12" Floor

ELIZABETH VALENTINA New York, NY 10013

CARLETTA F. HIGGINSON (212) 998-6730

JOSHUA A. BLOCK

JENNER & BLOCK LLP KENT A. YALOWITZ

919 Third Avenue GLYNN K. SPELLISCY

New York, NY 10022 JOSHUA BROOK

(212) 891-1600 YUF-HAN CHOW

ARNOLD & PORTER LLP

ADAM H. MORSE 399 Park Avenue

JENNER & BLOCK LIP New York, NY 10022

330 N. Wabash Avenue (212) 715-1000

Suite 400

Chicago, IL. 60611 Attorne\ s for Respondents

(312) 222-9350

*C ours vl of Recs rd

1.

i

QUESTIONS PRESENTED

Whether a state election scheme that imposes severe

burdens on voters and potential candidates is neverthe-

less exempt from strict constitutional scrutiny because

one of its elements is a nominating convention.

Whether it was an abuse of discretion to enter a pre-

liminary injunction temporarily precluding use of the

state’s unconstitutional election scheme until the case is

tried on the merits or until the state legislature enacts a

constitutional system.

TABLE OF CONTENTS

Page

TR LE NE EE aT i

OR Ge FR OI sccscccensccesessccscesnsenincscecnnsoemneinn iv

EE TT eae EE a aE l

1. The Facts Adduced At The Preliminary

TTI sxc nenstiisicebeeimiasehaiaiibbnainiiaianambeietintt 2

a. Recruiting and Qualifying Delegates.................. 4

i. SI chscecscchslynsinnisiiilticsiennionsninienesiainiais 6

c. “Lobbying” the Party Leaders’ Chosen

TT ssceiasolcetii Sine iahiacmicibiniuiiiiaeninbeianieinbei 8

BF Ie IED vcectctcccscseccssntncnnscccnssssesesess 11

2. The Preliminary Injunction ...............::ccccccsseeseeeeees 1]

3. The Intestocutory Appeal .............cc-ccc.cccccssesssseosees 12

REASONS FOR DENYING THE WRIT ................:::00000 15

I. THE NOMINATION SCHEME IN THIS CASE

ls UNIQUE, AND THE SECOND CIRCUIT’S

OE a IN, cccrescesecnnvnvcccssicccsorcesesevens 16

II. THE CASE IS PROCEDURALLY UNSUITABLE

_, IEEE ARR rane eee era eR OE 17

HI. THE SECOND CIRCUIT CORRECTLY APPLIED

STORER V. BROWN AND SIMILAR BALLOT

FREE ITE SEE EES LIT RAPE SC 18

A. The Unitary Standard Governing Ballot

Access Cases Applies To Intra-Party

Nomination Processes. ..............:c.cesecseeeeeeees 18

B. The Second Circuit’s Decision Does Not

ON I a sasisecirieninmeseee 22

iil

IV. THE SECOND CIRCUIT’S DECISION DOES

Ee EE I TPE occnccnscccasisscvndeesseuboneseoiete 24

V. THERE IS NO CIRCUIT SPLIT. ..............cccccceessseveceerees 27

EET oe ae a a Re Ce 29

iV

TABLE OF AUTHORITIES

CASES

Americas ' «rty of Texas v. White,

Ss SE 14, 20, 21, 24, 25

Anderson v. Celebrezze,

SF es FCN cenicerenssresssvsccinsniniecnimnnninnnnntiiai 21

Bachur v. Democratic National Party, 836 F.2d 837

Ce, BD acinccsenisstentmennsennscinesiinniiitnmmnmndudiéhiags 27

Bowe v. Board of Election Commissioners, 614 F.2d

SST Cre Gee: FE veweensscnccossessicsininiinensineneniiadineaiiiiieil 22

Bullock v. Carter, 405 U.S. 134 (1972)......ccccccceeeeeeees 20, 24

Campbell v. Bysiewicz, 242 F. Supp. 2d 164 (D. Conn.

FE nccsccrrunisinieinnnneniniimmmmmenal 22

Clingman v. Beaver, 544 U.S. 581 (2005) ............ 21, 23, 24

Hamilton-Brown Shoe Co. v. Wolf Brothers &

Ce, BOD UB. BP8 CII ecceescesccsesnenerenssnesevininensnseniins 17

Harper v. Virginia State Board of Elections, 383 U.S.

| TT 19

Kusper v. Pontikes, 414 U.S. 51 (1973) .....ccccccceeeeseees 20, 24

Lubin v. Panish, 415 U.S. 709 (i974) 0.0... cccceccceeeeeeees 20, 21

Molinari v. Powers, 82 F. Supp. 2d 57 (E.D.N.Y.

OP nccacswsnsencisessiariesesnmensinnssenieniiinansanadaal 22

Moore v. Ogilvie, 394 U.S. 814 (1969) ....... cc cceceeeeees 19, 20

Morse v. Republican Party of Virginia, 517 U.S. 186

COED .<asssscisisasietvioninesanniennestenimntinaaaaanale 26

Norman v. Reed, 502 U.S. 279 (1992) .......ccccesseseseeeeneeees 22

Ripon Society, Inc. v. National Republican Party, 525

F le SOF GA. CR. FT Biicesccsessevtacesstsassvimmaniiain 27, 28

Vv

Smith v. Allwright, 321 U.S. 649 (1944) o..ccccccccceceeeeneenees 19

Storer v. Brown, 415 U.S. 724 (1974)........004 14, 18, 20, 21

Tashjian v. Republican Party of Connecticut, 479 U.S.

STITT iste dateeattcisianinehdineamebinnmiinennsesiotte 21, 23

Terry v. Adams, 345 U.S. 461 (1953)......ccccccccececesceeeeeeeeees 19

Texas v. Mead, 465 U.S. 1041 (1984) .......ccccccccesccseeseeceeees 17

Ulrich v. Mane, 383 F. Supp. 2d 405 (E.D.N.Y. 2005).....22

United States v. Classic, 313 U.S. 299 (1941) 0.0.2.0... 19,24

United States v. Johnston, 268 U.S. 220 (1925)....cccccc0000 17

Vasquez v. United States, 454 U.S. 975 (1981).......cc0ccc000 16

Virginia Military Institute v. United States, 508 U.S.

EES RETEST AOS Nena nee 17

Williams v. Rhodes, 393 U.S. 23 (1968).......cccccecce0000. 19, 21

CONSTITUTIONAL PROVISIONS & STATUTES

EE ae l

I III TIT 1c caretasisasncesneneconeentosenencneontes 26

I I I sseatseusauesanbuononioneans 26

Is sscrsteeisslinsenaien 8, 26

a ee 26

ee ee ny RY Or PEI... ccccccssnsssensocesosonesensonecsssooecs 5

EE ee 5

i ccecaimilimeninne 26

Se I RI IIT 00a scncsectstinssssnensoesenenssoensensesesen 7

I eslenneinseie 26

ED 26

vi

MISCELLANEOUS

John Caher, Spitzer Calls for Court and Election Reforms,

Fee Oo Mi © GOR, @ Bee cttcrsennansonnncrsscccnrnmincsnneneees 18

Eliot Spitzer, Address to the Rockefeller Institute of

Government: Government Reform

PE. did iccineriscceitinicecdidinancniemmnemnntaninginenes 15,17-18

STATEMENT

New York’s constitution grants voters the authority to elect

Supreme Court Justices (the state’s trial judges of general juris-

diction). N.Y. Const. art. VI, § 6(c). By statute, New York

mandates a “three-part scheme that combines a primary elec-

tion, a nominating convention, and a general election.” Pet.

App. 10a (footnote omitted). The lower courts found that this

scheme—enacted when Tammany Hall ran the New York Leg-

islature—imposes severe burdens on voters and candidates.

Local party leaders always hand-pick the nominees; voters have

no realistic opportunity to influence their party’s nomination;

and insurgent candidates have no real opportunity to compete

for the nomination. Moreover, because most parts of the State

are dominated by a single party, these undemocratic nomina-

tions dictate the outcome of the general election in all but a few

instances. As the Second Circuit put it, “New York has trans-

formed a de jure election into a de facto appointment.” Jd. at

69a-70a.

As we show infra, several compelling reasons counsel

against review of the Second Circuit’s decision upholding a

preliminary injunction that enjoined this scheme until trial. The

case remains at an interlocutory stage. The district court “ex-

pressly contemplated a full trial at a later date,” id. at 77a, and

Petitioners “hotly contest” the relevant facts, Pet. 9. Events are

also moving fast. It is likely that the state Legislature will re-

place the laws at issue before this Court could complete consid-

eration of the case on the merits. Moreover, the issues pre-

sented—far from being matters of broad importance—concern

an election system that is “unique in the nation.” Pet. App. 9a.

Finally, on the merits, the Petition relies on a caricature of the

Second Circuit’s opinion. No fair reading can support the Peti-

tion’s hyperbolic arguments about clashes with this Court’s

precedents and conflicts with other circuits. Rather, the opinion

faithfully applies the legal standards laid out by this Court and

2

carefully explains why the facts of this case are radically differ-

ent from the facts at issue in the D.C. Circuit and Fourth Circuit

cases cited by Petitioners.

1. The Facts Adduced at the Preliminary Injunction

Hearing

The Petition discusses the statutory scheme as an abstrac-

tion. But the district court developed a 10,000-page prelimi-

nary injunction record establishing how the scheme actually

functions, and the Second Circuit relied on the district court’s

extensive findings.

As the court of appeals put it: “This case requires us to peer

inside New York’s political clubhouses and determine whether

party leaders have arrogated to themselves a choice that be-

longs to the people.” Jd. at Sa. The Second Circuit described a

system “beset with obstacles” that “deprives a candidate of ac-

cess altogether” through “overlapping and severe burdens.”

Id.at 17a, 45a. “[T]he evidence showed that a network of re-

strictive regulations effectively excludes qualified candidates

and voters from participating in the primary election and subse-

quent convention ....” /d. at 53a. In much of New York, the

judicial nominating conventions operate in the manner of a pro-

verbial “‘smoke-filled room.’” /d. at 149an.36. Absent a mas-

sive split within the party’s leadership, not a single Democratic

or Republican insurgent candidate has ever won nomination

under this system. /d. at 58a, 147a, 167a. As the district court

found:

[L]ocal major party leaders—not the voters or the dele-

gates to the judicial nominating conventions—control

who becomes a Supreme Court Justice and when. The

highly unusual processes by which that extremely im-

portant office is filled perpetuate that control, and de-

prive the voters of any meaningful role.

Id. at 95a.

3

At the preliminary injunction hearing, the district court re-

ceived extensive evidence that local political party leaders con-

trol the election process. One report in evidence, authored by a

Commission that included ten sitting or former New York

judges, states: “‘the uncontested evidence before [the Com-

mission] is that across the state, the system for selecting candi-

dates for the Supreme Court vests almost total control in the

hands of local political leaders.””” Jd. at 29a. As the court of

appeals observed,

The Commission is hardly the only entity to reach this

conclusion—it merely is the latest. Since 1944, New

York’s judicia! nominating system has been described as

exclusionary and boss-dominated; reports and newspaper

editorials from that time forward have decried an elec-

toral practice “that mocks choice,” and criticized a sys-

tem in which “voters can never know the candidates and

have to accept party slates,” while the “real choice is...

left to political bosses . . . who control nominations.”

Id.

Defendants’ own witnesses confirmed this finding. For ex-

ample:

Defense expert Hechter wrote: “*The consequences of

the New York judicial convention are well-appreciated.

In politically unified districts it is difficult to attain the

nomination without the support of the party leadership.

This high barrier to entry significantly narrows the pool

of candidates.” Jd. at 177a n.40 (emphasis added by

the district court).

Defense expert Kellner admitted that any attempt by a

insurgent candidate to elect supportive convention dele-

gates would “twist[] the design of the system on its

head”: “*The system isn’t designed for individual can-

didates to be campaigning directly among the voters.’”

4

Id. at 168a-69a. He added: “‘By definition, the con-

vention system is designed [so] that the political leader-

ship of the party is going to designate the party’s candi-

dates.’” Jd. at 19a.

e New York County Democratic Party leader Farrell, the

executive officer of one of the defendants, acknowl-

edged his power to stop any candidate whom he had not

approved: “I can surely block you.”” Jd. at 133a. De-

fense witness Schiff confirmed: “I think I would know

about it” if someone were nominated over Mr. Farrell’s

objection, and “I can’t remember it ever happening that

way.” Tr. 1291-92; Pet. App. 21a.

These admissions confirmed a wealth of detailed evidence

about each step in New York’s byzantine statutory nomination

system.

a. Recruiting and Qualifying Delegates. New

York’s Supreme Court Justice elections ostensibly begin with a

primary. Voters elect delegates to separate judicial nominating

conventions in each of New York’s 12 Judicial Districts.

Within each Judicial District, candidates for the office of “judi-

cial delegate” run in each of the much smaller Assembly Dis-

tricts (“ADs”). As the district court put it:

This odd feature of the judicial nominating convention

process contributes significantly to the heavy burden it

places on those who seek major party nominations for

Supreme Court Justice without the support of the party’s

district leaders and county leaders. Such candidates face

the prospect of as many delegate races as there are ADs

in the judicial district—at least nine and as many as 24.

Id. at 104a. Adding to this burden, the political parties, which

are authorized by statute to set the number of delegates, require

the election of multiple delegates in each AD, amounting to

5

scores of candidates in each Judicial District. Jd. at | la-12a,

104a-07a.

Therefore, the first problem any insurgent faces is recruiting

enough candidates to contest scores of delegate and alternate

races in each of the district’s many ADs. That problem is insu-

perable in practice, as all but one of Petitioners conceded at the

preliminary injunction stage. /d. at 168a. Indeed, Petitioners’

expert testified that it would be improper for a candidate to run

a slate of delegates, because “[t]he system is designed for can-

didates to be appealing to the judicial delegates and not to the

electorate at large.” Tr. 1573.

Even if a candidate could recruit enough people willing to

run for delegate and alternate, it would be practically impossi-

ble to put all those willing individuals on the ballot. For each

prospective delegate or alternate candidate, the candidate would

have to gather 500 valid signatures of party members residing

in the specific AD. N.Y. Elec. Law § 6-136(2)(i), (3). As are-

sult, the number of signatures required just to run a slate of

delegates and alternates across a single Judicial District is sev-

eral times larger than the number required to get onto the pri-

mary ballot for other judicial and non-judicial offices covering

the same territory and rivals the number required to run for

Governor statewide. Moreover, that comparison ignores the

added statutory burden of obtaining signatures in each of the

ADs in the Judicial District. Pet. App. 12a. In addition, to pro-

tect against legal challenges by the county’s party machine, an

insurgent candidate would need to gather many more than the

Statutory minimum of 500 signatures in each AD. /d. at 13a,

108a.

Those few candidates who have tried to run alternate slates

of delegates have not come close to success. For example, one

City Court Judge in Rochester “found that recruiting and run-

ning slates of delegates was ‘nota realistic option.’” Jd. at 14a.

Competing would have required him to recruit more than 55

6

candidates for delegate. /d. Moreover, “the signature require-

ments were daunting: he would have had to recruit ‘several

dozen people to work full-time at gathering’ at least 9,000 sig-

natures over the course of 37 days.” Jd. The candidate con-

cluded that “‘there was simply no way [he] could overcome

these organizational and financial burdens.’” /d. at 15a.

Judge Margarita Lopez Torres, one of the plaintiffs, tried to

obtain the nomination of her party for eight years. She “was an

experienced and successful campaigner who twice won coun-

tywide election to the Civil Court in Brooklyn.” Jd. But she,

too, found that the “‘burdens and barriers to organizing such

[delegate] campaigns are truly insurmountable’ for those candi-

dates who lack the ‘county party leaders’ backing.” Jd.

By contrast, party leaders easily tap party loyalists to run as

delegates and alternates. “Most delegates have strong ties to

the district leaders who select them, and sometimes work for

them as well.” /d. at 114a. As defense expert Hechter admit-

ted, “‘District leaders effectively select delegates to the judicial

convention.’” /d. at 177an.40. Defense expert Kellner agreed

that local politicians select judicial delegates “at a meeting

where I’m reminded of the old song, politics and poker from

Fiorello, where they’ re sitting around the table, say who do we

run?” Tr. 1624. Moreover, those leaders have no difficulty

putting their hand-picked choices onto the ballot in every AD.

An enormous hurdle for a challenger is a pro forma exercise for

the party leaders, who “can easily mobilize the resources neces-

sary to conduct the petition drives throughout the judicial dis-

tricts because they are collecting signatures in all of those ADs

anyway, for a variety of other party and public offices.” Pet.

App. 109a; see also id. at 16a-17a.

b. Electing Delegates. Delegates run for the sole pur-

pose of attending a single judicial convention. Two weeks after

the election, the job is over. If, as occurs almost all the time,

the party leadership slates of delegates and alternates are the

-

only ones filed with the Board of Elections, they are “deemed .

.. elected” and do not even appear on the September ballot at

all. N.Y. Elec. Law § 6-160(2). “This kind of invisible, auto-

matic ‘election’ is the norm rather than the exception.” Pet.

App. 17a.'

Even in the rare contested delegate and alternate races, the

September ballot does not and cannot tell voters which Su-

preme Court candidate the nominees intend to support—in con-

trast with the ballot in Presidential primaries, which shows the

voter both the delegate and the Presidential candidate together.

As a result, an insurgent candidate would have to inform the

voters of a particular delegate’s or slate’s allegiance through

expensive campaign advertising or contacts with voters—with

each AD requiring separate literature identifying the relevant

delegate candidates and the Supreme Court candidate. /d. at

13a.

A candidate who recruited enough nominees for all the

delegate and alternate seats in every AD, and obtained the nec-

essary signatures, and survived legal challenges to their peti-

tions, would still face the formidable obstacle of actually get-

ting the insurgent slate elected. A candidate

would need to field delegates in all or virtually all the

ADs to have a realistic chance of prevailing in enough

races to obtain a majority of delegate support at the

convention. This is true not only because a challenger

candidate is not likely to win every delegate race under

normal circumstances, but also because the prospect of

competing against the party leaders elevates the degree

of difficulty.

' The rare exceptions “are almost always the result of localized disputes be-

tween entrenched factions of the party, not of challenger candidates’ efforts

to obtain support of party members.” Pet. App. | i2a.

8

Pet. App. 107a; see also id. at 63a.

c. “Lobbying” the Party Leaders’ Chosen

Delegates. Insurgents have the theoretical option of “lobbying”

the convention delegates. But once the delegates have been

duly installed in early September, New York law requires the

nominating convention to be held within two weeks. N.Y.

Elec. Law § 6-124. That is an impossibly short period in which

to persuade scores of delegates to defy the leaders who gave

them their positions. Pet. App. 18a, 116a. But even if it were

two months, or two years, party leaders’ control over the dele-

gates and the convention would thwart any insurgent.

New York’s judicial nominating conventions are pro forma

affairs at which the delegates “rubber stamp” decisions made

earlier. /d. at 22a-23a, 114a, 125a-26a. Petitioners’ expert ad-

mitted: ““Party leaders have great influence over the nomina-

tion process when their party is unified. Indeed, judicial con-

ventions generally take little time. Decisions are often unani-

mous. Since insurgent candidates are only likely to be

nominated when the party is internally divided, rates of incum-

bency are high.’” Jd at 177a n.40. Defense expert Kellner

“conceded that at least in some judicial districts, the ‘leadership

of the party . . . hold[s] a meeting before the convention’ to

‘work things out,’ and then makes nomination ‘recommenda-

tions’ to the deiegates. Asked whether those ‘recommenda-

tions’ were ‘always followed,’ Kellner replied, “Generally,

yes.”” Id. at 21a.

The district court credited “in its entirety” the testimony of

plaintiffs’ expert Henry Berger. /d. at 117a. Mr. Berger, for-

mer Chairman of New York’s Commission on Judicial Con-

duct, explained:

“(T]he district leaders almost always follow the wishes

of the county party [leader] when it comes to voting for

Supreme Court candidates at the convention. In turn, the

delegates follow the wishes of the district leaders who

9

have selected them and support the county party

[leader’s} chosen candidates.”

Id. at 19a. Mr. Berger also testified that “the pool of truly eli-

gible candidates is severely limited and cannot include many

talented lawyers who have spent their careers focusing on legal

work rather than political party service.” JA-296.

Expert Bruce Cain testified that “[t]he whole process lacks

that democratic moment [in] which the voters get to say

whether or not they believe the party’s organization is doing the

right thing. It is just not there in the process.” Tr. 329. The

district court credited Dr. Cain’s conclusion, finding “no evi-

dence of a single successful challenge to candidates backed by

the party leaders.” Pet. App. 131a-32a.

Compelling documentary evidence confirmed the experts’

conclusions. More than 96% of nominations have been uncon-

tested at the convention. Jd. at 22a. The district court also

credited evidence of the compressed time devoted to the con-

ventions, see id. at 126a-29a, and the high absentee rates for ju-

dicial delegates, which range from 25% for Democratic Party

corventions in New York City to 69% for Republican Party

conventions in New York City, see id. at 23a, 104a n.8. The

district court explained that “(t]he extremely high absentee rate

reflects, among other things, the fact that delegates to the con-

ventions know their votes do not rea!ly matter.” /d. at 125a.

The futility of “lobbying” is well illustrated by the experi-

ence of Judge Lopez Torres. As the district court explained:

“Shortly after she was elected [to the Civil Court]...she was

told by [Clarence] Norman, the county leader, and Vito Lopez,

her district leader, to hire a particular young attorney as her

court attorney.””!... When Lopez Torres refused, Norman told

2 , 7 3

The “court attorney,” or “law secretary,” is the state-court analog to a fed-

eral judge’s law clerk. Pet. App. 24a.

10

her she would not become a Supreme Court Justice.” /d. at

137a-38a; see also id. at 24a-25a. Mr. Lopez later offered

Judge Lépez Torres “a chance to redeem herself: if she hired

his daughter as her law secretary, he would secure her nomina-

tion as the Democratic Party’s candidate for Supreme Court

Justice.” /d. at 25a. Again, she refused. When Mr. Norman

later blocked Judge Lépez Torres from obtaining the nomina-

tion, he said that “his concerns with her candidacy had nothing

to do with her qualifications,” but rather arose out of her “dis-

loyalty.” Jd. at 140a, 27a.

State Senator (and witness for the defense) Martin Connor

acted as chair of the 2002 nominating convention in Brooklyn.

He admitted that a “County” operative routinely told him in ad-

vance who the nominees were to be. Tr. 2204, 2208-09. Con-

sistent with that routine, on the day before the 2002 convention,

he learned that the party leaders had chosen a candidate he con-

sidered unqualified. “I said you have Margarita Lopez Torres,

she might put her name in. You people are supporting... a

horrible choice.” /d. at 2208-09; see also Pet. App. 22a, 114a-

15a. Despite his personal outrage and conviction that “what

was about to be done was wrong, and bad for the bench,” Sena-

tor Connor kept quiet at the convention. /d. at 115a.

Similarly, after the 2003 convention a year later, a

“County” operative circulated a letter to all delegates telling

them that he had voted against Judge Lopez Torres at the con-

vention because she was an “ingrate” for refusing to hire Vito

Lopez’s daughter. /d. at 28a, 142a.

If a powerful and respected politician like Senator Connor

felt obliged to keep quiet while “County” punished Judge

Lopez Torres, “it is hardly likely that mere delegates will refuse

to do the county leader’s biddirg in the ordinary course of

events.” /d. at 115a. The district court recognized this as evi-

dence of the “political dynamic [that] ensures that the district

11

leaders and their delegates . . . virtually always support the can-

didates backed by the party leaders.” /d. at 114a.

d. The General Election. “Empirical evidence

showed that because one-party rule is the norm in most judicial

districts, the general election is little more than ceremony.” /d.

at 23a. Even Petitioners’ expert admitted that “there are rela-

tively few judicial districts where there are contested general

elections.” Tr. 1601.

2. The Preliminary Injunction

Following a four-week evidentiary hearing on Plaintiffs’

motion for a preliminary injunction, the district court concluded

that Plaintiffs had “made a compelling showing that the New

York system is designed to freeze the political status quo,” Pet.

App. 183a, had shown a substantial likelihood of success on the

merits, id. at 185a, and had met the other requirements for a

preliminary injunctior:

In fashioning its preliminary injunction, the district court

noted that “[t}he choice of a permanent remedy for this consti-

tutional violation does not fall to me, but rather to the legisla-

ture of New York State.” /d. at 183a. The court therefore

awarded a temporary remedy, lasting only until trial, or until

the legislature enacts a constitutional method of nominating

Supreme Court Justices. Jd. The court severed the unconstitu-

tional system and left in place the default statutory framework

that otherwise governs all judicial and non-judicial elections in

New York. The court determined that this approach, which

would result in a direct primary election under New York’s de-

fault provision (N.Y. Elec. L. § 6-110) until the State enacts a

constitutional statute, was “the least intrusive course.” Pet.

App. 184a. Defendants never proposed to the district court any

alternate remedy.

12

3. The Interlocutory Appeal

A unanimous panel of the Second Circuit affirmed. The

court conducted a thorough review of the facts found by the

district court after the preliminary injunction hearing, approving

them entirely. The court began its legal analysis by recognizing

that the right to vote is “‘of the most fundamental signifi-

cance,’” that “the rights of voters,and the rights of candidates

do not lend themselves to neat separation,” and that “‘[oJur

primary concern is with the tendency of ballot access restric-

tions to limit the field of candidates from which voters might

choose.’” /d. at 35a (following and quoting Burdick v. Takushi,

504 U.S. 428, 433 (1992), Anderson v. Celebrezze, 460 U.S.

780, 787 (1983), and Williams v. Rhodes, 393 U.S. 23, 30-31

(1968)).

At the same time, the Second Circuit recognized that “‘as a

practical matter, there must be a substantial regulation of elec-

tions if they are to be fair and honest and if some sort of order,

rather than chaos, is to accompany the democratic processes.’”

Id. (quoting Anderson, 460 U.S. at 788). Thus, the court re-

fused to “resort to any ‘litmus-paper test that will separate valid

from invalid restrictions,’” and explained that “our review is

neither formalistic nor abstract. Instead, we must turn a keen

eye on how the electoral scheme functions in fact; indeed, ‘it is

essential to examine in a realistic light the extent and nature of

[the scheme’s] impact on voters.’” /d. at 35a-36a (quoting, re-

spectively, Anderson, 460 U.S. at 789, and Bullock v. Carter,

405 U.S. 134 (1972)).

The court of appeals then articulated this Court’s flexible

standard for assessing ballot access restrictions:

If our realistic assessment yields the conclusion that the

electoral scheme lightly or even moderately burdens First

Amendment rights, we apply a relaxed standard of

review, according to which the restrictions generally are

valid so long as they further an important state interest.

13

On the other hand, if we conclude that a law imposes

severe burdens, we apply strict scrutiny, which requires

that the law be necessary to serve a compelling state

interest.

Id. at 36a (following Bullock).

Next, the Second Circuit explained that “the state must pro-

tect First Amendment rights at each ‘integral part of the proce-

dure of choice.’” /d. at 38a (quoting United States v. Classic,

313 U.S. 299, 318 (1941)). It rejected Petitioners’ contention

that Classic and its progeny apply “only where the state has

provided for a direct primary, whereas New York has opted for

an indirect delegate primary election followed by a conven-

tion.” /d. at 39a. “This variation in the process of public

choice,” the court held, “does not release the State from its First

Amendment obligations.” /d.

The court of appeals then explained that “the First Amend-

ment affords candidates and voters a realistic opportunity to

participate in the nominating process, and to do so free from

burdens that are both severe and unnecessary to further a com-

pelling state interest,” and that “exclusions that result from a

complex of otherwise facially valid regulations also may offend

the First Amendment.” /d. at 41a-42a. The court added: “Al-

though no case has passed on a scheme identical to New York’s

unique judicial election process, the above principles derive di-

rectly from a line of Supreme Court cases.” /d. at 42a; see also

id. at 42a-44a (following Anderson, 460 U.S. 780; Am. Party of

Tex. v. White, 415 U.S. 767 (1974); Bullock, 405 U.S. 134;

Jenness v. Fortson, 403 U.S. 431 (1971); and Williams, 393

U.S. 23)).

Petitioners attempted to avoid strict scrutiny on two

grounds. First, they took issue with the district court’s findings

of fact. The Second Circuit, however, embraced those findings.

Id. at 10a. The question whether the burden was “severe” was

not close: the New York scheme “does not merely deprive a

14

candidate of a realistic chance to prevail; rather, through the use

of overlapping and severe burdens, it deprives a candidate of

access altogether.” /d at 45a. The court assessed these bur-

dens in light of the extensive record developed below, id. at

6la-70a, including statistical, documentary, and testimonial

evidence from many witnesses in addition to that of the lead

plaintiff—a qualified and diligent candidate whom many voters

within her party wished to support: “when Lopez Torres was

an incumbent Democratic office holder seeking a Supreme

Court nomination, she had significant public support, but could

not access the electoral process without possessing either great

wealth or a massively preexisting political apparatus.” /d. at

59a. Petitioners attacked this facet of the court’s fact-based in-

quiry as lacking legal support. But the Second Circuit easily re-

jected that complaint, relying on Storer v. Brown, 415 U.S. 724

(1974), as well as its own precedent. Pet. App. 60a. It found

the distinction between the independent candidate in Storer and

the challenger candidate here to be immaterial, because

“({ml]inor party candidates and disfavored major-party candi-

dates face closely similar challenges in this context: both are

opposing an entrenched, dominant, and hostile political appara-

tus.” Pet. App. 60a.

Second, Petitioners argued that “a nominating convention is

per se constitutional,” id. at 46a, relying for this novel argument

on a snippet from this Court’s decision in American Party of

Texas v. White, 415 U.S. 767 (1974). The Second Circuit re-

jected that interpretation of White for several reasons, including

the fact that this Court actually applied strict scrutiny to the

statute there at issue. Pet. App. 47a-48a. The court of appeals

also deemed inapposite two cases cited by Petitioners that in-

volved challenges to internal party rules relating to the presi-

dential convention system, because those rules imposed mini-

mal burdens on the franchise and were not mandated by law.

Id. at 49a-54a.

15

The Second Circuit then considered and rejected as insuffi-

cient each of the State’s proffered justifications for the burdens

imposed by its election system, applying sizict scrutiny. /d. at

70a-76a. Petitioners have not taken issue with that aspect of the

ruling below. Finally, the Second Circuit found no abuse of

discretion in the district court’s temporary remedy. /d. at 78a-

84a.

REASONS FOR DENYING THE WRIT

Petitioners attempt to portray the Second Circuit’s applica-

tion of this Court’s precedents to New York’s unique statutory

scheme as a rogue decision that will have broad implications

for constitutional doctrine and for other state statutes. In truth,

however, the fact-bound ruling of the court of appeals addresses

a Statutory scheme that has no analog anywhere in the country.

Any decision by this Court in this case would thus have no di-

rect application to any other state’s election laws.

Moreover, other factors make this case procedurally unsuit-

able for review. The Petition seeks review of an interlocutory

order, even though the lower court “expressly contemplated” a

later trial. Jd. at 77a. Petitioners also disregard the New York

Legislature’s express commitment to address “expeditiously”

the constitutional infirmities identified by the lower courts. /d.

at 84a. The State’s new Governor pledged during his recent

campaign to reform what he called “a party-dominated system

of judicial selection that permits unqualified judges to reach the

bench.” Eliot Spitzer, Address to the Rockefeller Institute of

Government: Government Reform (Nov. 21, 2006). Accord-

ingly, it is very likely that the statutory scheme at issue will be

changed even before this Court could reach the merits.

Nor is there any reason tc doubt the validity of the Second

Circuit’s legal analysis. Far from running afoul of this Court’s

opinions in Storer or White, the court faithfully applied those

precedents—and the closely related cases that Petitioners do not

16

mention. Moreover, in part because New York’s statutory

scheme is unique, the suggestion that the decision conflicts with

rulings of two other circuits—involving internal party rules

rather than mandatory statutes, and burdens that were anything

but severe—does not withstand scrutiny.

I. THE NOMINATION SCHEME IN THIS CASE IS UNIQUE,

AND THE SECOND CIRCUIT’S DECISION IS FACT-

BOUND.

A decision by this Court would be relevant only to New

York’s “unique hybrid scheme” for nominating Supreme Court

justices. Jd. at 47a. Of the 33 states that use contestable elec-

tions to select some or all of their trial judges, New York is the

only state that uses a convention system at all, let alone the hy-

brid scheme at issue. /d. at 97a-98a. In addition, the scheme is

unique to the office of Supreme Court Justice within New York.

Candidates for every other elective office in New York—

judicial and non-judicial—run in ordinary primary elections.

Id. at 98a. The Petition identifies no electoral system elsewhere

that would be even remotely affected by a ruling on the merits.

Indeed, Petitioners’ failure to identify any real conflict between

the Second Circuit’s decision and either this Court’s or other

circuits’ precedents owes to the indisputable fact that New

York’s arcane system has no analog in the current statutory

nomination systems in other states.

For the same reason, this case would be a peculiarly inap-

propriate vehicle to address any broader questions of First

Amendment doctrine. In general, this Court will “decline to re-

view a decision that turns on details of the evidence that are not

likely to be duplicated in other cases.” Vasquez v. United

States, 454 U.S. 975, 977 (1981).

The Second Circuit’s decision turned on an analysis of New

York 'aw and evidence of the severe burdens it imposes on can-

didates and voters. Pet. App. Sa, 95a. Although Petitioners

17

“hotly contest” the facts, Pet. 9, they offer no reason why it

would be a wise allocation of this Court’s resources to umpire

such acontest. This Court does “not grant a certiorari to review

evidence and discuss specific facts.” United States v. Johnston,

268 U.S. 220, 227 (1925); Texas v. Mead, 465 U.S. 1041

(1984) (Stevens, J.).

Il. THE CASE IS PROCEDURALLY UNSUITABLE FOR

REVIEW.

Review by the Court at this juncture would be premature, as

both the factual record for the lower courts’ interlocutory deci-

sions and the very statutory scheme at issue may change.

The district court adopted a “temporary remedy,” and “ex-

pressly contemplated a full trial at a later date.” Pet. App. 77a.

For that reason alone, review by this Court would be premature

at best. See Virginia Military Institute v. United States, 508

U.S. 946 (1993) (Scalia, J., concurring in denial of certiorari).

As this Court has said, “except in extraordinary cases, the writ

is not issued until final decree.” Hamilton-Brown Shoe Co. v.

Wolf Brothers & Co., 240 U.S. 251, 258 (1916).

Moreover, the Legislature and the Governor have indicated

that they intend to alter the statutes at issue. Within “weeks af-

ter the district court issued its decision, New York’s State Sen-

ate passed a bill providing for primary elections for the office

of Supreme Court Justice,” Pet. App. 83a, and the Senate spon-

sor just reintroduced the same bill on January 4, 2007, S. 564.

In a brief filed with the Second Circuit, the Legislature pledged

to “*move as expeditiously as necessary to devise a workable

solution’” in the event the Second Circuit affirmed. Pet. App.

84a. And the State’s new Governor has stated: “It is a simple

fact that our court system is in dire need of reform.... [T]he

courts have been hopelessly compromised by a party-

dominated system of judicial selection that permits unqualified

judges to reach the bench.” Eliot Spitzer, Address to the Rock-

18

efeller Institute of Government: Government Reform (Nov. 21,

2006). More recently, he said that “there must be a way to pri-

mary onto the ballot. I[ will not support anything that has a

closed convention structure, where only those who came out of

the convention could be on the ballot.” John Caher, Spitzer

Calls for Court and Election Reforms, N.Y. L.J. 1, 12 (Jan. 4,

2007).

Ill. THE SECOND CIRCUIT CORRECTLY APPLIED STORER

V. BROWN AND SIMILAR BALLOT ACCESS CASES.

Petitioners work hard to concoct a tension between the Sec-

ond Circuit’s decision and Storer v. Brown, 415 U.S. 724

(1974). But the Second Circuit’s application of Storer to New

York’s hybrid convention system was entirely proper and un-

remarkable. The court of appeals simply used the standard ar-

ticulated and applied by this Court to ail ballot access cases for

more than 40 years, and that test is perfectly adequate to guide

the lower courts.

A. The Unitary Standard Governing Ballot

Access Cases Applies To Intra-Party

Nomination Processes.

Petitioners challenge the Second Circuit’s reliance on “the

Storer line of cases,” insisting that those cases addressed only

> Review by this Court is particularly inappropriate given that a full range of

potential reforms is being publicly debated. The Legislature has recently

held hearings across the State to address the future of the Supreme Court se-

lection system. Not surprisingly, there is great variety in the remedies chat

have been proposed. The remedies proposed range from an appointive sys-

tem, to primaries (as exist for every other election in New York), to m. tor

and minor changes to the convention system. Strikingly, the system as it ex

isted prior to the district court’s decision was almost universally criticized in

the hearings for what the President of the New York State Bar Association

called its “undemocratic” and “sham” (as well as “unconstitutional”) form.

19

minor party or independent candidate access to general election

ballots, rather than “intraparty competition” at the nomination

phase. But the ballot access cases that undergird the Second

Circuit’s decision are part of a single line of cases in which this

Court has applied a consistent approach to analyzing barriers to

participation in the political process—strict scrutiny for “se-

vere” burdens; rational-basis scrutiny for “lesser” burdens—

whether at the nomination or general election stage, and irve-

spective of whether the plaintiffs are major-party, minor-party,

or independent candidates.

Beginning with the White Primary Cases, this Court estab-

lished the principle that the voters’ “right of participation” is

fully applicable at the intra-party nomination phase and must be

“protected just as is the right to vote at the election.” United

States v. Classic, 313 U.S. 299, 318-19 (1941); Smith v. All-

wright, 321 U.S. 649, 653 & n.6, 663-64 (1944) (Democratic

Party primary); Terry v. Adams, 345 U.S. 461, 469-71 (1953)

(pre-primary election by private club). In Harper v. Virginia

State Board. of Elections, 383 U.S. 663, 667 (1966), this Court

relied on these cases in striking down a poll tax, explaining that

any substantial infringement on the fundamental right to vote

“must be carefully and meticulously scrutinized.” (quotation

marks omitted).

In Williams v. Rhodes, 393 U.S. 23 (1968), the Court struck

down an Ohio law that “heavily burdened” the ability of new

political parties to place electors on the presidential ballot. /d.

at 31. Following Harper, and resting its decision on both the

First and Fourteenth Amendments, the Court applied strict scru-

tiny to strike down the statute because the State “failed to show

any ‘compelling interest’ which justified imposing such heavy

burdens on the right to vote and to associate.” Jd.

In Moore v. Ogilvie, 394 U.S. 814 (1969), the Court used

the same standard to evaluate an Illinois statute that burdened

independent candidates. Following Classic and Allwright, the

20

Court applied strict scrutiny to severe burdens on the right to

vote, expressly applying the same level of scrutiny as in cases

of invidious discrimination: “A1l procedures used by a State as

an integral part of the election process must pass muster against

the charges of discrimination or of abridgment of the right tc

vote.” 394 U.S. at 818 (emphasis supplied).

In Bullock v. Carter, 405 U.S. 134 (1972), the Court struck

down a Texas law that placed severe burdens on candidates in

the Democratic Party primary election. The Court applied

“close scrutiny” because the “patently exclusionary character”

of the filing fee requirement “in every practical sense pre-

cluded” certain candidates “from seeking the nomination of

their chosen party, no matter how qualified they might be, and

no matter how broad or enthusiastic their popular support.” /d.

at 143.

And in Kusper v. Pontikes, 414 U.S. 51 (1973), the Court

applied the same standard to strike down an Illinois statutory

restriction on voters’ freedom to participate in their parties’

nomination that “deprived [the voter] of any voice in choosing

the party’s candidates, and thus substantially abridged her abil-

ity to associate effectively with the party of her choice.” Jd. at

58. The Court added: “As our past decisions have made clear,

a significant encroachment upon associational freedom cannot

be justified upon a mere showing of a legitimate state interest.”

id.

Then, in three cases annowiced together on March 26,

1974—Storer, Lubin v. Panish, 415 U.S. 709 (1974), and

White ~the Court applied this same standard: severe burdens

on the right to vote in any context require strict scrutiny, while

lesser burdens permit rational-basis review. Each of the cases

cited one or both of the others; all three cases cited and fol-

lowed Williams and Bullock. In Storer, this Court applied the

test to independent candidates, affirming some restrictions as

both legitimate and compelling, 415 U.S. at 736, and remand-

21

ing for further consideration of the “extent of the burden” im-

posed by other restrictions, id. at 740. In Lubin, this Court ap-

plied the same test to strike down California’s filing fees for all

party candidates in that state’s primary elections. Lubin found

that the right to vote is “‘heavily burdened’ if that vote may be

cast only for one of two candidates in a primary election at a

time when other candidates are clamoring for a place on the

ballot.” 415 U.S. at 716 (quoting Williams, 393 U.S. at 31).

Finally, in White, the Court applied strict scrutiny to restrictions

on the nominating procedures available to minor parties, hold-

ing that the restrictions’ “validity depends upon whether they

are necessary to further compelling state interests.” 415 U.S. at

780 (citing Storer).

Petitioners thus are wrong to insist that Storer is part of a

separate “strand” of jurisprudence. This Court has applied the

identical First and Fourteenth Amendment standard to restric-

tions on independent or minor-party candidate access to the

general election ballot (e.g., Storer, Williams) and restrictions

On intra-party nomination procedures for major and minor par-

ties (e.g., White, Kusper, Bullock, Lubin).’ Later cases use the

same test. See Clingman v. Beaver, 544 U.S. 581, 586-87, 589

(2005) (determining that burdens imposed by restrictions appli-

cable to both major and minor parties during nomination phase

were not severe); Zashjian v. Republican Party of Conn., 479

U.S. 208, 213-14, 216 & n.7 (1986) (applying strict scrutiny

where state imposed severe burdens on major-party nomina-

tions); Anderson v. Celebrezze, 460 U.S. 780, 789-96 (1983)

' Petitioners attempt in a footnote to cabin Lubin and Bullock as cases in-

volving invidious discrimination decided on Fourteenth Amendment

grounds. Pet. 19n.2. But these cases did not address discrimination against

a protected class at all. They rested on associational rights protected by the

First and Fourteenth Amendments. See Lubin, 415 U.S. at 710, 716; Wil-

liams, 393 U.S. at 30-31; see also Norman v. Reed, 502 U.S. 279, 288 n.8

(1992): Anderson v. Celebrezze, 460 U.S. 780, 786 n.6 (1983).

22

(applying strict scrutiny to restrictions on independent candi-

dates). The Petition does not cite a single case limiting the

analysis in Storer to independent candidates.” Indeed, as the

Second Circuit pointed out, the burdens on a party insurgent

closely parallel those on an independent candidate: “both are

Opposing an entrenched, dominant, and hostile political appara-

tus.” Pet. App. 60a.

B. THE SECOND CIRCUIT’S DECISION DOES NOT

“COLLIDE” WITH STORER.

Petitioners assert that the Second Circuit’s decision “col-

lides” with Storer by creating a constitutional “right to win.”

Pet. 22. But the court of appeals specifically disclaimed any

constitutional “right to win,” Pet. App. 45a, holding rather that

“the First Amendment affords candidates and voters a realistic

opportunity to participate in the nominating process, and to do

so free from burdens that are both severe and unnecessary to

further a compelling state interest,” id. at 41a-42a. The Second

Circuit affirmed the district court not because insurgent candi-

dates cannot “win,” but rather because “New York’s nominat-

ing process, as found by the District Court... deprives a candi-

date of access altogether.” Pet. App. 45a. Among other evi-

dence, the Second Circuit properly considered proof that not a

single insurgent candidate had ever obtained a major party

nomination for Supreme Court. See Norman v. Reed, 502 U.S.

279, 294 (1992) (relying in part on exten: of past successes in

overcoming alleged burdens to determine their severity).

, Lower courts have uniformly applied Storer in cases not involving inde-

pendent candidacies. See Bowe v. Board of Eiection Commr's, 614 F.2d

1147, 1152, 1153 n.10 (7th Cir. 1980); Ulrich v. Mane, 383 F. Supp. 2d 405,

412(E.D.N.Y. 2005); Campbell v. Bysiewicz, 242 F. Supp. 2d 164, 178 (D.

Conn. 2003); Molinari v. Powers, 82 F. Supp. 2d 57, 70-71 (E.D.N.Y

2000).

23

Petitioners also contend that “the proper equivalent to ballot

access is convention access, i.e., having a chance to put one’s

name up for consideration at the convention.” Pet. 23 (empha-

sis omitted). That contention is contrary to the evidence, which

showed that “‘a candidate who lacks the support of her party’s

leadership has no actual opportunity to lobby delegates.” Pet.

App. 18a. For a challenger candidate, “access” to the closed

convention bears no resemblance to the opportunity to compete

for support among the party’s voters free of unnecessary and

severe burdens; for the party’s voters, “access” to the conven-

tion not only never occurs, but would, in the words of Petition-

ers’ expert, “twist the design of the system on its head.” /d. at

17a. That is because “the process of lobbying delegates im-

poses severe, exclusionary burdens on candidates and voters,”

id. at 64a, and the conventions merely “rubber stamp” the will

of the party leadership without consultation or deliberation, id.

at 45a, 125a-26a. The Second Circuit thus found that mere for-

mal “access” to the conventions to request the nomination does

not address the legally relevant problem, namely that “candi-

dates lacking party leaders’ support and the voters who wish to

associate with them are practically, if not formally, excluded

from the nomination process.” Jd. at 45a.

This Court evaluates “the realities” of ballot restrictions, not

“empty formalism.”° The Court’s precedents fully support the

Second Circuit’s insistence on actual, rather than theoretical,

voter participation at the nomination phase. As the Court stated

in Classic:

7 Clingman, 544 US. at 610 (Stevens, J., dissenting); id at 599

(O'Connor, J., concurring) (“A realistic assessment... .require{s] examination

of the cumuiative effects of the State’s overall scheme.”); Tashjian, 479 U.S.

at 234 (Scalia, J., dissenting) (this subject matter “does not lend itscif to

bright-line rules but requires careful inquiry into the extent to which the one

or the other interest is inordinately impaired under the facts of the particular

case’’).

24

[W]e cannot close our eyes to the fact . . . that the practi-

cal influence of the choice of candidates at the primary

may be so great as to affect profoundly the choice at the

general election even though there is no effective legal

prohibition upon the rejection at the election of the

choice made at the primary, and may thus operate to de-

prive the voter of his constitutional! right of choice.

313 U.S. at 319; see Kusper, 414 U.S. at 58 (“A prime objec-

tive of most voters in associating themselves with a particular

party must surely be to gain a voice in that selection process.”);

Bullock, 405 U.S. at 146-47 (rejecting formal access to general

election ballot as a “reasone*!e” alternative to opportunity to

compete at primary election); Clingman, 544 U.S. at 590

(‘“*[t}he moment of choosing the party’s nominee’... is ‘the cru-

cial juncture at which the appeal to common principles may be

translated into concerted action, and hence to political power in

the community.””) (Thomas, J., for a plurality) (internal cita-

tions omitted).

This Court has further held that the voters’ right to partici-

pate at the nomination stage is particularly significant where the

party’s nomination “effectively controls the choice,” Classic,

313 U.S. at 318, or “may be more crucial than the general clec-

tion.” Bullock, 405 U.S. at 146-47. Here, the “[e]mpirical evi-

dence showed that because one-party rule is the norm in most

judicial districts, the general election is little more than cere-

mony.” Pet. App. 23a.

IV. THE SECOND CircuItT’s DECISION DoES NOT

“CLASH” WITH WHITE

Petitioners ignore the fact that White is of a piece with the

other ballot access cases, and instead rely exclusively on a one-

line quotation from White to argue that a state may “insist that

intraparty competition be settled before the general election by

primary election or by party convention.” White, 415 U.S. at

25

781. But White did not address whether conventions are per se

constitutional; that question was “not contested.” Jd.

The central question in White was whether the burdens im-

posed by a statute that required minor parties to demonstrate the

support of 1% of the electorate (either through a series of con-

ventions or through post-convention signature gathering) was

“necessary to further [a] compelling state interest.” 415 U.S. at

780; see id. at 782-83 & n.14. The Court simply did not ad-

dress whether the particular convention procedures used in

Texas provided members of a party with a sufficient role in the

nomination process, much less suggest that a//] conventions

would pass muster without regard to the traditional legal stan-

dard of review.

Further, the convention system addressed in White bears no

resemblance to New York’s uniquely burdensome and closed

hybrid system. Texas’s system involved precinct conventions

at which any registered voter.in the precinct could vote directly

for the candidate of his or her choice. 415 U.S. at 784 (“Any

voter, however registered, may attend the new party’s precinct

convention... .”).

The fact that New York has chosen a hybrid system rather

than a primary does not eliminate the candidates’ and voters’

right to participate free of severe and unnecessary burdens.

Otherwise, the First Amendment would limit the ability of a

state to burden the right to vote in a primary, but would not ap-

ply at all where a state adopts a nomination mechanism that

grants a handful of party leaders in a smoke-filled room the un-

bridled power to choose the party’s standard-bearers without

any voters’ input at all. That cannot be the law. “To the ex-

cluded voter who cannot cast a vote for his or her candidate, it

is all the same whether the party conducts its nomination by a

primary or by a convention open to all party members except

those kept out by the [restriction]. Each is an ‘integral part of

26

the election machinery.’” Morse v. Republican Party of Va.,

517 U.S. 186, 207 (1996) (quoting Classic, 313 U.S. at 318).

The Petition suggests that the Second Circuit prohibited the

use of conventions. That is not true. The Second Circuit ex-

pressly left open the possibility that New York could enact a

nominating system that would include a convention of some

kind—as long as the system viewed as a whole does not impose

the unnecessary and severe burdens that are hallmarks of the

current system. Pet. App. 82a-83a. In fact, the State already

uses several convention systems for non-judicial offices that do

not impose unconstitutionally severe burdens. For example, the

State’s major parties hold conventions to select their designees

for statewide offices; challenger “andidates for those offices

must gather petitions to obtain a place on the party’s primary

ballot if they do not succeed at the convention. See N.Y. Elec.

Law §§ 6-124, 6-126, and 6-158. New York’s small towns and

villages hold conventions in which any resident party member

may attend caucuses to nominate candidates for local offices.

Id. §§ 6-108, 6-202, and 15-108.

The Petition also claims that the lower courts “dismantled

New York’s chosen election method and replaced it with a pri-

mary.” Pet. 16. That is silly. The courts temporarily enjoined

the operation of the two offending sections of New York’s elec-

tion law, and clarified that the existing default provision (§ 6-

110) would govern until trial, unless the Legislature sooner

chose to enact a system that would survive constitutional scru-

tiny. Pet. App. 82a-83a. Far from “imposing” a primary, the

Second Circuit merely affirmed the district codrt’s deference to

the statutory default.

7 ‘oan ial ,

The Second Circuit also properly rejected petitioners’ argument that the

district court should have crafted its own version of a judicial convention

rather than eliminating the offending statutory provisions. Such tinkering

would have required the trial judge “to act as a one-person legislative super-

Footnote continued on next page

27

Not a single case—and certainly not White—has even con-

sidered, much less upheld, a convention system anything like

New York’s uniquely burdensome system. The “clash” Peti-

tioners allege between White and this case is entirely fictitious

and offers no reason to grant review.

Vv. THERE Is No CIRCUIT SPLIT.

In an effort to manufacture a basis for a grant of review by

claiming a circuit conflict, Petitioners mischaracterize the hold-

ings of Ripon Society, Inc. v. National Republican Party, 525

F.2d 567 (D.C. Cir. 1975) (en banc), and Bachur v. Democratic

National Party, 836 F.2d 837 (4th Cir. 1987). Neither case an-

nounced or applied legal principles at odds with the Second

Circuit.

In Bachur, the plaintiff challenged the Democratic National

Party’s rule requiring each state to send equal numbers of male

and female delegates to the party’s national convention.

Bachur, 836 F.2d at 838. The court observed that the plaintiff s

“vote for delegates is some steps removed from a vote for an

actua' candidate for public office” and deemed the restriction to

be “limited” rather than severe. /d. at 841 (following Anderson,

Bullock, and Tashjian). The Court therefore considered

whether the restriction had a “rational purpose.” /d. at 842.

The Court emphasized that it was not announcing a per se rule:

“We do not foreclose the possibility of a different result with

respect to a different restriction in a different case.” /d. at 841.

The Second Circuit correctly distinguished Bachur, explaining:

“In that case, there existed no entry barriers to candidates. Nor

did the regulations effectively prevent a party member from

voting for their preferred candidate....” Pet. App. 53a.

Footnote continued from previous page

chamber—precisely what is forbidden.” Pet. App. 80a

28

In Ripon, the plaintiff challenged the National Republican

Party’s formula for allocating delegates among the states.

Ripon, 525 F.2d at 570. The lack of a severe burden was obvi-

ous. Indeed, the plaintiff could not even “identify with any

confidence the set of people whose preferences are to be given

equal and accurate expression.” /d. at 585 n.58. For that rea-

son, the plurality considered whether the scheme rationally ad-

vanced a legitimate interest. /d. at 586-87. The plurality also

disclaimed any per se rule, stating that its decision “might be

otherwise in a case where there is only one party with a realistic

chance to win the election, and where a vote in the nominating

process is the only effective vote that can be cast.” Jd. at 589.

Indeed, the plurality explained, “although courts should be slow

to interfere with the internal processes of political parties, cir-

cumstances can be conceived of wherein they may grant relief.”

Id.. The plurality also distinguished between the internal pro-

cedural rules at issue in that case and a burden “mandated by a

state statute, applicable to all parties.” Jd. at 589 n.65. The

Second Circuit thus correctly distinguished Ripon, explaining:

the convention system considered in Ripon was, by and

large, a private function that directly implicated the

party’s right to govern its own internal affairs. By con-

trast, New York’s delegate selection process is one of

public election, which directly implicates the associa-

tional rights of party members voters and candidates.

Pet. App. 5! 2-52a (citations omitted).

Petitioners’ reliance on Ripon and Bachur is, accordingly,

doubly misplaced. Both involved challenges to the internal

rules of the national political parties, not challenges to burdens

imposed by statute. And both concerned restrictions that did

not block a single candidate from appealing to the voters of his

or her party. Neither case stands for the proposition that a State

may rely on the associational interests of the party leadership to

justify severe burdens, imposed by law, that effectively shut out

29

voters of the party from the nominating process. Neither case

conflicts with the Second Circuit’s analysis of New York’s

unique and extreme statutory scheme.

CONCLUSION

The petition for a writ of certiorari should be denied.

30

Respectfully submitted,

ARNOLD & PORTER LLP BRENNAN CENTER FOR JUSTICE

AT NYU SCHOOL oF LAW

KENT A. YALOWITZ

GLYNN K. SPELLISCY FREDERICK A.O. SCHWARZ, JR.

JOSHUA BROOK DEBORAH GOLDBERG*

YUE-HAN CHOW JAMES J. SAMPLE

399 Park Avenue 161 Avenue of the Americas

New York, New York 10022 12th Floor

(212) 715-1000 New York, NY 10013

(212) 998-6730

JENNER & BLOCK LLP

PAUL M. SMITH

601 13th St., N.W.

Washington, D.C. 20005

(202) 639-6000

JEREMY M. CREELAN

ELIZABETH VALENTINA

CARLETTA F. HIGGINSON

JOSHUA A. BLOCK

919 Third Avenue

New York, NY 10022

(212) 891-1600

ADAM H. MORSE

330 N. Wabash Ave # 4000

Chicago, IL 60611

(312) 222-9350

Attorneys for Respondents

*Counsel of Record