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

/ | MAY? - 2007

No. 06-766 | |

Hn the Supreme Court of the Anited States

Supreme Court US

PILED

NEW YORK STATE BOARD OF ELECTIONS, ET UAL.,

PETITIONERS

t.

MARGARITA LOPEZ TORRES, ET AL.,

RESPONDENTS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE MID-MANHATTAN BRANCH

OF THE NAACP AND THE METROPOLITAN

BLACK BAR ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

LINDA T, COBERLY GENE CC. SCHAERR

Winston & Strawn LLP Counsel of Record

35 West Wacker Drive STEFFEN N. JOHNSON

Chicago, Illinois 60601 JEFFREY M. ANDERSON

(312) 558-5600 Winston & Strawn LLP

1700 K Street, NNW.

MICHAEL J. FRIEDMAN Washington, D.C. 20006

Winston & Strawn LLP (202) 282-5000

200 Park Avenue

New York, New York 10166

(212) 294-6700

Counsel for Amici Curiae

WILSON-EPES PRINTING CO..INC. — (202) 769-0096 — WASHINGTON, D C. 20002

QUESTION PRESENTED

In American Party of Texas v. White, 415 U.S. 767

(1974), this Court held that the Constitution does not nec-

essarily forbid party conventions “in preference to” party

primaries as the means for political parties to choose their

candidates for elective office. In the decision below, the

Second Circuit affirmed a ruling requiring New York’s po-

litical parties to nominate candidates for trial-court judge

by party primaries rather than conventions. In so doing,

the Second Circuit invalidated the statute governing judi-

cial nominations in its entirety, even though only certain

portions of the statute were deemed unconstitutional.

The question addressed by amici, which is subsumed

within the question presented by petitioners, is this:

May a federal court strike down an entire state

statute absent a finding that the legislature's

purpose in enacting the statute would be frus-

trated by removing only its constitutionally de-

fective portions?

This question was addressed by the courts below and is

“not foreign to the parties.” Teague v. Lane, 489 U.S. 288,

300 (1989) (considering retroactivity argument raised only

by amici).

il

TABLE OF CONTENTS

Page

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INTRODUCTION AND INTERESTS

TTT ic inssincrnisieuntcieniesenitiandiagiandaiannnniiniinnapiancadiants 1

IEE cccchsitesidicneniniieiiieinindinsisiccnneenpicinnbeiniaaintiamninannt 2

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TET <siscisisiisieritcensitinteianinieindioneindariianeduiitainsieadimanadeiuniiintl 6

I. Under New York Law, Which Controls Here,

Non-Defective Portions Of A Statute Must Be

Preserved If The Legislature Would Prefer

8 REPENS eo eno rt POND ee nT e e 7

ll. The Courts Below Failed To Conduct The

Required Severability Analysis, And In So

Doing Erred In Eliminating New York’s Entire

EE A NE COE 11

a eaiieanaaiinniies 17

EAE Pp eee a eT NERD Se Toe la

in

TABLE OF AUTHORITIES

Page(s)

CASES:

American Party of Texas v. White,

I I lcci neensiindieindniaibensipniadaetih i, 14

Ayotte v. Planned Parenthood of Northern

New England, 126 S. Ct. 961 (2006) ............0000..ceeeee 6

Buckley v. Valeo,

I i ae 8

Dorchy v. Kansas,

I a lalla 6

Falion v. State Bd. of Elections,

380 N.Y.S.2d 355 (N.Y. App. Div. 1976)...................0. 14

Hynes v. Tomei,

Be Re Ie CI Bc. FI cccccccceccciriccsvcnntnssccncstosonccnni 6

Leavilt v. Jane L.,

HI TI cxinsisisicicentcinsiuitesintsibiaibaninennneinasniesesietnnaiin 6

Lopez Torres v. New York State Bd. of Elections,

411 F. Supp. 2d 212 (E.D.N.Y. 2006) .......... 2, 4-5, 12-14

Lopez Torres v. New York State Bd. of Elections,

462 F.3d 161 (2d Cir. 2006) ......................cce cee 5, 12, 14

Norman vy. Reed,

I I a cesrmmepeateidaninaiaatael 14

In re Orans,

Se I CIE THe cctercitnenncnccnsnsensinnsmecnanntncinnel i)

People ex rel. Alpha Portland Cement Co. v. Knapp,

ST , IT CI sc scersicnctimnsengncavanncendaitiinss 7-8, 15

Rathbone v. Wirth,

I, SPE: SII citnautdivcetintddnoniigeciusciamnnnnetee 10-11

Reynolds v. Sims,

Ee, Se vatvisesinintinnicietinsateeventeniinmaiteiescetansiiin 9

1V

Schieffelin v. Goldsmith,

i. 5 Rk eee 9-11, 16

Skaneateles Waterworks Co. v. Village of Skaneateles,

ns I , atcenetinnesatieaauetinien 7, 16

Smith v. Allwright,

ERIS I Nise a a ee 15

Storer v. Brown,

EE RRO a a OEE ANY 14

Teague v. Lane,

ESR od end AO a i

Terry v. Adams,

ET AE Ce 15

WMCA, Inc. v. Lomenzo,

REE STS ETS a oe 9

Matter of Westinghouse Elec. Corp. v. Tully,

Oe Be EE Os ie Be ccceccccececcccecencsteesscessisessnencncs 7

STATUTES:

Bae. Ce BAI he BIG once ccvscccccicecnssnsesccesenssssscsores 13, 15

MISCELLANEOUS

Letters from The Federal Farmer to The Republican

No. 3 (Oct. 10, 1787), in 1 The Debate on the

Constitution 245 (Bernard Bailyn ed. 1998)................. 8

Publius [Alexander Ilamilton], The Federalist No. 78

(May 28, 1788) in 2 The Debate on the

Constitution 467 (Bernard Bailyn ed. 1993)................. 8

> i ee a ee ee ee ee a a i 2 ee ae ee a in pe I ts

INTRODUCTION AND

INTERESTS OF AMICI CURIAE

The severability analysis in the decision below war-

rants reversal even if the Court otherwise affirms that de-

cision. The Second Circuit found that New York’s statu-

tory system for nominating party candidates for judicial

elections imposed severe burdens on the First Amendment

rights of voters and candidates, and struck down the

nomination statute in its entirety. Before striking down

the entire statute, however, the court was required by

long-standing precedent to perform a severability analysis

to determine whether the non-defective portions of the

statute could be preserved. Had the Second Circuit per-

formed that analysis, it would have concluded that the se-

vere burdens it found were traceable to an isolated portion

of the statute; that the Legislature’s purpose in enacting

the statute would not be frustrated without the burden-

some provisions; and that a more limited remedy was re-

quired.

The Second Circuit's severability analysis, moreover,

not only led to the wrong result in this case, it also has

profound implications for future cases in that Circuit and

elsewhere. ‘The Second Circuit's approach signals an

enormous expansion of judicial power of which this Court

has repeatedly disapproved, and that approach should be

rejected here as well.

The severability issue in this case is of particular con-

cern to amici curiae Mid-Manhattan NAACP and Metro-

politan Black Bar Association, which support equal protec-

tion for African-Americans and other minorities in New

York City.' Both organizations, which are described in

more detail in the Appendix, include sitting black Su-

| The parties have consented to the filing of this brief. No coun-

sel for any party has authored this brief in whole or in part, and

no person or entity other than amici and its counsel has made a

monetary contribution to the preparation or submission of this

brief.

2

preme Court Justices in their membership, and both have

representatives on the judicial screening panel that

evaluates candidates for Supreme Court Justice for the

First Judicial District—a panel recognized by the district

court as “the best in the state.” Lopez Torres v. New York

State Bd. of Elections, 411 F. Supp. 2d 212, 231 (E.D.N.Y.

2006).

As organizations with a long history of championing

the equal access of blacks and other minorities to elective

office in New York, amici are strong proponents of New

York’s judicial convention system. Amici are especially

proud of the record of minority participation that conven-

tion system has produced in New York City. Amici be-

lieve, however, that the decisions below unnecessarily

compromise the success of New York’s judicial election

procedures. Even if portions of the relevant statutes could

not be upheld, wholesale rejection of the convention stat-

ute was inappropriate. Amici thus urge the Court to re-

verse the decision below and thereby ensure that the rem-

edy in this case does not needlessly sacrifice the diversity

benefits of the existing convention system.

STATEMENT

1. In 1921, the people of New York, acting through

their duly elected legislators, expressed a clear preference

for selecting nominees for the office of New York State Su-

preme Court Justice through a convention system, rather

than direct primary elections.

In more recent years, this convention system has pro-

moted the public welfare by enabling minority candidates

to seek and obtain the office of Supreme Court Justice in

proportion with the tremendous diversity in New York

City. For example, as a result of the convention system,

the Supreme Court bench in New York County is cur-

rently 44.7 percent minority.” Of the 38 Supreme Court

——-

2 Defendants Corrected Proposed Findings of Fact in Opposi-

tion to Plaintiffs’ Motion for Preliminary Injunction, Lopez Tor-

3

justices in New York County, 22 are women, nine are Afri-

can-American, four are Hispanic, and two are Asian-

American.’ In 2002, the First Judicial District convention

nominated:

e Rolando Acosta, a Dominican man;

e Carol Edmead, an African-American woman;

e ‘Troy Webber, an African-American woman;

e Rosalyn Richter, a disabled woman;

e Doris Ling-Cohan, an Asian-American woman;

and

e Richard Price, an Orthodox Jewish man.‘

In the district court, petitioners presented voluminous

testimony that a primary system could never achieve the

kind of diversity that the convention system does, mainly

because “[t]he best single determinant of success in a di-

rect election is the size of the candidate’s campaign chest,”

and minorities tend to have disproportionately smaller

fundraising resources.£ One of petitioners’ experts testi-

fied that without the convention system “you would have a

bunch of rich people {elected] to the bench and there would

be no minorit[ies] sitting up there at all.”° According to

this expert, the existing convention system is “a little

res v. New York State Bd. of Elections, No. 04-cv-1129-JG-SMG

(E.D.N.Y. Jan. 26, 2005) (Docket No. 112) (‘Defendants Pro-

posed Findings’), © 241.

8 bid.

4 Id. © 239.

® Id. © 247.

® Id. © 248.

4

fairer to ordinary people.”’ Another expert testified that

primaries would result in “an entirely white bench.”®

2. Although the convention system was democratically

enacted and has done much to foster diversity on the

bench, the courts below held that the statute enacting that

system violates the First Amendment and cannot be ap-

plied in its current form. The district court ruled that the

statute imposed severe burdens on the First Amendment

rights of voters and candidates to have meaningful choice

in the election of Supreme Court Justices, without the jus-

tification of sufficiently compelling state interests. 411

F. Supp. 2d at 243-255. The district court based this rul-

ing primarily on anecdotal evidence of respondents’ diffi-

culties in obtaining the nomination of their parties with-

out the support of party leadership. Jd. at 231-239.

According to the district court, several features of the

judicial election statute were responsible for respondents’

alleged difficulties, including: (1) the number of assembly

districts from which a candidate must field delegates to

the conventions; (2) the number of delegates each candi-

date must run within each assembly district; (3) the num-

ber of signatures each candidate must obtain for each

delegate within a 37-day period; (4) the prohibition of

identifying the candidate each delegate supports on the

ballot; and (5) the impracticality of lobbying delegates to

change their votes prior to and at the conventions them-

selves. Id. at 217-230.

Based on its finding of a First Amendment violation,

the district court enjoined the operation of the entire New

York judicial convention system and ordered that. direct

primary elections be held unless the Legislature can im-

plement a new system before the next election cycle. Id. at

255-56. The district court did not examine whether the

* [bid

8 Id. © 249.

5

convention system could still function in the absence of the

provisions it found too burdensome, instead concluding

that a primary system was preferable because it “assure|[s]

that intraparty competition [will be] resolved in a democ-

ratic fashion.” Jd. at 256 (citation omitted).

The Second Circuit affirmed the district court’s find-

ings in their entirety. Lopez Torres v. New York State Bd.

of Elections, 462 F.3d 161, 208 (2d Cir. 2006). The Second

Circuit acknowledged the Legislature’s preference for

holding conventions rather than primaries, as well as the

obligation of federal courts not to “nullify more of a legisla-

ture’s work than is necessary.” Id. at 171-172, 205. But

the court failed to examine whether nullifying the entire

convention statute was the least invasive way to remove

its constitutional defects. Instead, the court conflated the

required practice of striking defective provisions with the

impermissible practice of “rewriting” or “modifying” them.

Id. at 206.

In reviewing the district court’s requirement that pri-

maries be held in the next election cycle, the Second Cir-

cuit considered only two options—striking down the entire

convention system and leaving a procedural void for se-

lecting candidates, or striking down the entire convention

system and ordering primaries. Id. at 206-207. This false

dichotomy omitted the option of striking down only the

defective portions of the convention system and leaving

the remainder of that system in place.

SUMMARY OF ARGUMENT

Even if the Court affirms the Second Circuit's conclu-

sion that New York's convention statute violates the First

Amendment in some respects, the Court should reverse

the decision below because it nullifies a greater portion of

the statute than necessary to remedy those asserted con-

stitutional defects. To prevent overreaching by the lower

federal courts, this Court has provided strict rules for de-

termining how to fashion equitable relief when striking

6

down defective statutes. Those rules were not followed in

the decisions below.

The correct approach, following a finding that certain

features of New York’s judicial convention procedures

were unconstitutional, would have been to examine

whether the remainder of the statute could function in a

manner consistent with the Legislature’s intent with the

defective portions removed. The Second Circuit did not

perform that analysis.

Had it done so, the court below would have seen that

the Legislature clearly preferred nominating judicial Wan-

didates by convention, and that the convention statute

could still function robustly with the offending features

removed. The result would have been to strike down only

the offending features and to leave the rest of the conven-

tion statute intact.

Instead, the Second Circuit imposed upon New York a

party-primary system that its Legislature expressly dis-

carded in 1921 and that its voters still do not want today.

Prominent among the reasons New York’s voters want to

preserve the convention system is its proven track record

of promoting minority representation in the New York ju-

diciary. But the decision below replaces that process with

one preferred, as a matter of public policy or political the-

ory, by unelected federal judges. That decision should be

reversed.

ARGUMENT

As a preliminary matter, and contrary to the analysis

performed below, the severability of a state statute is gov-

erned by state law. See Leavitt v. Jane L., 518 U.S. 137,

139 (1996); Dorchy v. Kansas, 264 U.S. 286, 290 (1924).

Thus, although the rule for determining whether a statute

is severable is the same under both New York and federal

law, compare Hynes v. Tomei, 706 N.E.2d 1201, 1207 (N.Y.

1998), with Ayotte v. Planned’ Parenthood — of

Northern New England, 126 S. Ct. 961, 967 (2006), it is

7

appropriate to draw upon New York authority in assessing

the severability of any provisions found to be constitution-

ally infirm here.

As we show in Section I, under New York law, non-

defective portions of a statute must be preserved if the

state legislature would prefer that result. And as we show

in Section I], even if some portions of the New York con-

vention statute violate the First Amendment, the New

York legislature would clearly prefer to retain a conven-

tion system rather than switching to a primary system.

That preference should be respected.

l. Under New York Law, Which Controls Here,

Non-Defective Portions Of A Statute Must Be

Preserved If The Legislature Would Prefer That

Result.

For more than 80 years, New York law has been clear

that a court finding specific provisions of a statute invalid

must determine “whether the legislature, if partial inva-

lidity had been foreseen, would have wished the statute to

be enforced with the invalid part exscinded, or rejected

altogether.” People ex rel. Alpha Portland Cement Co. v.

Knapp, 129 N.E. 202, 207 (N.Y. 1920) (Cardozo, J.). ‘lo

determine what the Legislature “would have wished,” New

York courts consider the legislative history of the statute,

see Matter of Westinghouse Elec. Corp. v. Tully, 470

N.F.2d 853, 855 (N.Y. 1984), and ask whether, as a practi-

cal matter, the statute would still be capable of function-

ing “if the knife is laid to the branch instead of at the

roots,” Alpha Portland Cement, 129 N.E. at 207.9

-- — ee

* A corollary of this functionality test is that, where a defective

portion of a statute was added by later amendment, the pre-

amendment version of the statute is functional enough to stand

on its own. See Skaneateles Waterworks Co. v. Village of Skane-

ateles, 55 N.b. 562, 566-567 (N.Y. 1899) (where unconstitutional

provision was not added to statute until 19 years after its pas-

sage, “the elimination of that feature of the statute will in no-

8

The obvious reason for this approach is to keep legisla-

tive power out of the hands of the judiciary by limiting a

court’s power to the minimum necessary to remedy the

constitutional infirmity before it. As then-Judge Cardozo

explained in Alpha Portland Cement, a court’s “right. to

destroy [a statute] is bounded by the limits of necessity.”

129 N.E. at 208. “Our duty is to save,” he wrote, “unless

in saving we pervert.” /bid.!©

New York's highest court has applied these well-

settled severability rules to provisions of the State’s elec-

tion apparatus on several occasions, with results that are

instructive here.

wise interfere with the just and proper working out of the gen-

eral purposes of the act’); Buckley v. Valeo, 424 U.S. 1, 75-76

(1976) (upholding 1971 campaign spending disclosure statute

while striking down 1974 amendment imposing campaign

spending limits).

10 The limits on the power of federal courts to issue broad in-

junctions were one of the few issues upon which both the Feder-

alists and the Anti-Federalists agreed. When the Federalists

sought to include the phrase “all cases, in law and equity” in

describing the powers of the judiciary in Article ILI, the Anti-

Federalists were concerned that “equity” powers could be abused

to give judges unfettered discretion. See Letters from The Fed-

eral Farmer to The Republican No. 3 (Oct. 10, 1787), in 1 The

Debate on the Constitution 245, 273 (Bernard Bailyn ed., 1993).

Alexander Hamilton's reply for the Federalists was not to defend

broad equity powers, but rather to deny that judicial power was

broad in the first instance. See Publius [Alexander Hamilton],

The Federalist No. 78 (May 28, 1788), in 2 The Debate on the

Constitution 467, 468 (Bernard Bailyn ed, 1993). Thus, the

Anti-Federalists opposed the grant of equity powers to federal

courts for fear of the unfettered discretion they would lend, and

the Federalists considered the judiciary to be capable of “no ac-

tive resolution whatever.” /bid. Between them, there is little

support for the broad exercise of judicial power in issuing sweep-

ing injunctions when a more hmited remedy is available.

9

For example, in Jn re Orans, 206 N.E.2d 854 (N.Y.

1965), the Court of Appeals examined which portions of

the New York State Constitution governing legislative dis-

trict size could withstand the recently-announced “one

man, one vote” apportionment rule of Reynolds v. Sims,

377 U.S. 533 (1964). Article III of the New York State

Constitution contained numerous mechanisms that com-

bined to give sparsely populated areas of the state greater

representation per capita in the Legislature than more

densely populated areas. This Court invalidated these

mechanisms on Fourteenth Amendment grounds in

WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964). The state

courts in Orans were left to sort out which other portions

of Article III could be preserved in light of WMCA.

Citing Judge Cardozo’s instructions in Alpha Portland

Cement, the Court of Appeals in Orans carefully examined

each remaining portion of Article III, “saving as much as

possible” in order to “carry[ ] out the will of the people of

this State.” 206 N.E.2d at 858, 860. The court concluded

that only the provisions making election district bounda-

ries “co-terminal” with county borders needed removal,

leaving intact other clauses capping the assembly size at

150 members, requiring assembly districts to be “com-

pact * * * convenient and contiguous,” allowing the num-

ber of senate districts to increase with population growth,

and preserving “the historic and traditional significance of

counties in the districting process * * * where and as far as

possible.” Id. at 859.

Similarly, in Schieffelin v. Goldsmith, 170 N.E. 905

(N.Y. 1930), the New York Court of Appeals considered a

state statute providing for the appointment of temporary

municipal court justices in the event that a sitting justice

became unable to perform his duties. The statute gave the

mayor authority to appoint temporary replacement jus-

tices, but with the proviso that the mayor could choose

those replacements only from the membership of the same

political party as the justice being replaced. /d. at 906.

This party affiliation limitation was challenged under Ar-

10

ticle 13, § 1 of the New York State Constitution, which

prohibits any “oath, declaration or other test” (other than

the oath of office) as a qualification for holding public of-

fice. Id. at 908.

The Court of Appeals found that the party affiliation

provision could be pruned at the branch without harming

the rest of the statute: “It is a complete harmonious stat-

ute with that sentence deleted. It affords a complete and

definite system for appointing temporary justices. The

sentence in question adds nothing to and detracts nothing

from the purpose of the act. The provisions of the act are

not so interdependent that the act cannot operate without

the sentence in question. It is not so related to the other

provisions that it can be supposed that the Legislature

would not have passed the act without it.” /bid.

In so holding, the Court of Appeals distinguished the

party affiliation provision in Schieffelin from one that

tainted the entire statute in Rathbone v. Wirth, 45 N.E. 15

(N.Y. 1896). There, the Court of Appeals had considered a

state statute requiring that the four-member Albany po-

lice board be composed of two members from each of the

two dominant political parties on the city council. /d. at

16-17. The statute thus precluded voters from electing a

majority from one of the two major parties, and precluded

third-party candidates from running at all. Jd. The Court

of Appeals found these provisions to violate the sections of

the New York State Constitution guaranteeing local voters

the right to elect local officers of their choosing. /d. at 17.

It then considered whether the defective provisions con-

cerning the composition of the police board could be sev-

ered and the rest of the statute concerning the procedural

mechanisms for choosing the police board preserved. Id.

at 20.

The Court of Appeals performed the familiar severance

analysis, asking whether the legislature would have en-

acted the remainder of the statute had it known the of-

fending provisions were constitutionally defective. The

1]

answer was clearly “No”: “This statute was intended to

amend the existing law upon the subject of a police com-

mission, and it is perfectly plain, upon its reading, that

what was aimed at was to remove from office the present

four commissioners and all of their subordinates, * * * and

to compel the substitution, as commissioners, of four per-

sons, who would be representatives of two certain political

organizations. If we eliminate the prescribed methods for

the accomplishment of this purpose, we emasculate the

legislative act, and it cannot seriously be contended that

then there would remain any such law as was intended to

be enacted by the legislature.” /d. at 21. According to the

court in Schieffelin, “the statute [in Rathbone], read as a

whole, made it apparent thai its purpose was to change

the political construction of the police department, and to

strike out that provision would nullify the purpose of the

Legislature. The decision is not in conflict with the hold-

ing in this case.” 170 N.E. at 908.

Read together, Orans, Schieffelin, and Rathbone pro-

vide a three-step process for determining severability.

Courts must (1) identify the purpose of the statute in

which the defective provision is found; (2) strike out only

the minimum language needed to remove the constitu-

tional defect; and (3) determine whether the remainder

can still function in a manner consistent with the previ-

ously identified purpose.

II. The Courts Below Failed To Conduct The Re-

quirec. Severability Analysis, And In So Doing

Erred In Eliminating New York's Entire Conven-

tion Statute.

The analysis below departs sharply from this well-

established framework.

1. To be sure, the Second Circuit correctly recognized

that the purpose of the convention statute was to end a

ten-year experiment with primaries that the Legislature

had deemed a failure. From the first judicial elections in

New York in 1846 until 191], the political parties em-

12

ployed conventions to designate their Supreme Court

nominees. 462 F.3d at 171. In 1911, the Legislature,

“buoyed by a wave of progressive politics,” switched to a

primary system. /bid. The new system soon proved to be

problematic: “[O]ver the next decade, concern grew that

bare-knuckled primary elections dissuaded qualified can-

didates from seeking these significant judicial positions.

As to those brave enough to enter the contest, observers

worried that the need to raise large sums of money might

compromise their independence, or at least appear to do

so, and lodge effective control of the nominating process in

the hands of the political bosses who directed their party’s

large election apparatus. As a result of these concerns, in

1921 New York recast the electoral process for Supreme

Court justices [by enacting the current statute].” Jd. at

171-172.

In other words, for 150 of the 160 years that New York

has elected its Supreme Court Justices, party candidates

were chosen by nominating conventions. For the remain-

ing ten years, the State experimented with a primary sys-

tem much like the one crafted by the district court as a

remedy here, but it was deemed to jeopardize the inde-

pendence of judges due to the large sums of money it re-

quired them to raise, and was scrapped.'! It may be in-

ferred from this legislative history that the purpose of the

statute at issue in this case was to create a nomination

process that shelters candidates from the need to raise

money to finance “bare-knuckled” primary elections.

2. According to the decisions below, the principal de-

fect in the convention statute is the burden created by

party rules requiring candidates to field unreasonably

large slates of convention delegates. See 462 F.3d at 192;

411 Fk. Supp. 2d at 220. Under the existing statute, a can-

didate seeking the office of Supreme Court Justice must

'! These concerns were repeated 85 years later in the testimony

presented in the district court. See supra at 3-4.

13

field a slate of convention delegates and alternate conven-

tion delegates from each assembly district (“AD”) within

the judicial district he or she seeks to represent. See N.Y.

Election Law § 6-124. But the statute leaves to the politi-

cal parties the task of determining how many delegates

must be elected from each AD. [bid.

Using this authority, the political parties have devised

delegate-allocation formulas yielding what the courts be-

low found to be unreasonably high numbers of deiegates

per judicial district. For example, a Democratic candidate

running for Supreme Ceurt Justice in the Second Judicial

District must field a slate of 124 delegates plus 124 alter-

nate delegates—248 total—across the 24 ADs in that judi-

cial district. Even worse, a Republican candidate running

in the Tenth Judicial District must field 185 delegates

plus 185 alternate delegates—370 total—across that judi-

cial district’s 21 ADs. See 411 F. Supp. 2d at 219.

According to the district court, the statute “makel|s] a

challenger candidate’s effort to elect a majority of dele-

gates more difficult” by “delegating to the major parties

the right to determine the number of delegates and alter-

nate delegates” required for nomination. /d. at 220. “In

the Second Judicial District in 2004, for example, such a

challenge would require running approximately 250 can-

didates across 24 ADs and two counties. The sheer num-

ber of people a challenger must recruit to run for the office

of delegate and alternate delegate is a significant burden

in itself.” Ibid.

The Second Circuit agreed, concluding that “the evi-

dence showed that the political parties’ delegate-allocation

formulae do much more than merely dilute the propor-

tional efficacy of votes vis-a-vis assembly districts within a

judicial district. Rather, the evidence showed that a net-

work of restrictive regulations effectively excludes quali-

fied candidates and voters from participating in the pri-

mary election and subsequent convention, and thus se-

14

verely limits voter choice at the general election.” 462

F.3d at 192.

The other features of the judicial convention system

cited below as contributing to an undue burden have pre-

viously been found constitutionally benign when standing

alone. For example, this Court has repeatedly upheld

more demanding signature requirements for ballot access

than those at issue here—between 9,000 and 24,000 signa-

tures over a 37-day period. See Norman v. Reed, 502 US.

279, 295 (1992) (“our precedents foreclose the argument”

that collecting 25,000 signatures from one suburban dis-

trict is unduly burdensome); Storer v. Brown, 415 US.

724, 740 (1974) (“|s]tanding alone, gathering 325,000 sig-

natures in 24 days would not appear to be an impossible

burden”); White, 415 U.S. at 783 (22,000 signatures in 55

days “does not appear either impossible or impractical’).

Similarly, although this Court has not considered New

York’s practice of not including on the primary ballot the

names of the candidate to whom a convention delegate has

pledged his support, that practice has been sustained by a

New York State court. See Fallon v. State Bd. of Elec-

tions, 380 N.Y.S.2d 355 (N.Y. App. Div. 1976).

None of the other features of the convention statute

was even claimed to be unconstitutional, much less found

to be so. The requirement of a convention in the first in-

stance is clearly permissible under White. The election of

delegates in a primary and their distribution across all

ADs are both features of candidate selection for other of-

fices in New York that were cited with approval by the

district court. 411 F. Supp. 2d at 220.

Without the cumulative effect of the delegate-

allocation formulas discussed above, it is unlikely that the

courts below would have found that the other features of

15

the convention system significantly burden First Amend-

ment rights.'*

3. Once the court below concluded that the delegate-

allocation formulas could not stand, it was required to

strike from the statute the minimum language necessary

to remove those formulas, and then to ask “whether the

legislature, if partial invalidity had been foreseen, would

have wished the statute to be enforced with the invalid

part exscinded, or rejected altogether.” Alpha Portland

Cement, 129 N.E. at 207.

Striking the defective formulas from the statute here

would have been remarkably easy because the formulas

are not in the statute to begin with. The statute contains

only a grant of authority to the political parties to create

those formulas, not the formulas themselves.'*

If the Legisiature did not insist upon any particular

delegate-allocation formulas in the text of the statute, it

follows that the Legislature's intent would not be thwarted

by invalidating only the particular allocation formulas

chosen by the parties. Furthermore, the fact that the spe-

cific formulas were put in place after the statute was en-

acted is compelling evidence of the statute’s adequate

12 "The other factual findings below, detailing the anecdotal dif-

ficulties of respondents in seeking office, are more accurately

described as symptoms, not causes, of the severe burden dis-

cussed above. It is hardly surprising that the political bosses

respondent Lopez Torres encountered—one of whom, Clarence

Norman, has since been convicted on numerous felony corrup-

tion charges—were able to freeze her out of the convention proc-

ess when her only alternative was to attempt to field a slate of

248 of her own delegates and alternates.

© See N.Y. Election Law § 6-124 (“The number of delegates and

alternates, if any, shall be determined by party rules”). The

creation of the delegate-allocation formulas by the parties is

nonetheless “state action” for constitutional purposes. See Terry

v. Adams, 345 U.S. 461, 481-482 (1953): Smith v. Alwright, 321

U.S. 649, 663-664 (1944).

16

functionality in the absence of those formulas. Cf. Skane-

ateles Waterworks, 55 N.E. at 566-567. Like the party af-

filiation requirement in Schieffelin, the delegate-allocation

formulas “add| | nothing to and detract | nothing from the

purpose of the act.” 170 N.E. at 908.'4

To extend Judge Cardozo’s analogy from Alpha Port-

land Cement, the knife in this case need not have been

laid at the branch or at the root, but rather at the poison-

ous fruit grafted on by the political parties. It was error

for the court below to enjoin more than was necessary to

cure the constitutional defects it found.

14 Even without these logical inferences, the Second Circuit

knew what the Legislature “would have wished” because the

Legislature told it so in the amicus brief it submitted in this

case. See Brief of the New York State Legislature as Amicus

Curiae, Lopez Torres vy. New York State Bd. of Elections, No. 06-

0635 (2d Cir. June 2, 2006). The Legislature wanted the federal

courts to keep out of crafting state legislation.

17

CONCLUSION

The decision below should be reversed.

Respectfully submitted.

LINDA T. COBERLY GENE C. SCHAERR

Winston & Strawn LLP Counsel of Record

35 West Wacker Drive STEFFEN N. JOHNSON

Chicago, Illinois 60601 JEFFREY M. ANDERSON

(312) 558-5600 Winston & Strawn LLP

1700 K Street, N.W.

MICHAEL J. FRIEDMAN Washington, D.C. 20006

Winston & Strawn LLP (202) 282-5000

200 Park Avenue '

New York, N.Y. 10166

(212) 294-6700

Counsel for Amici Curiae

MAY 2007

APPENDIX

la

APPENDIX

The Mid-Manhattan Branch of the NAACP:

Founded in 1909, the NAACP is the nation’s oldest and

largest civil rights organization. Its members throughout

the United States and the world are the premiere advo-

cates for civil rights in their communities, conducting

voter mobilization and monitoring equal opportunity in

the public and private sectors. The Mid-Manhattan

Branch was founded in 1966.

For over 40 years, the Mid-Manhattan NAACP has

been an advocate for all its citizens in the struggle for civil

rights and equality. Today, Mid-Manhattan NAACP plays

an active role in confronting the gaps and disparities in

health care, economics, education funding, criminal jus-

tice, and diversity in the courts and the judiciary.

Its efforts continue in voter education, registration and

mobilization, as well as youth development and enrich-

ment programs. Today, Mid-Manhattan NAACP has over

600 members, with seven working Committees (Education,

Health, Fundraising, Legal Redress, Membership, Politi-

cal Action and Youth Council).

Mid-Manhattan NAACP’s past and present participa-

tion on the Supreme and Civil Court Judicial Screening

Panels has contributed to greater diversity and minority

participation ca the Bench. The Branch has five sitting

Supreme Court Justices (Hon. Carol L.. Edmead, Hon. Mil-

ton A. Tingling, Hon. Doris Ling Cohen, Hon. Debra

James, and Hon. Paul Fineman) and four sitting Civil

Court Judges (llon. George Silver, Hon. Tanya Kennedy,

Hon. Margaret Chan, and Ilon. Shari Michels) among its

¢ tive members. These Judges all reported out of the Ju-

dicial Screening Panel process as highly qualified and are

representative of the great diversity of New York County.

2a

The Metropolitan Black Bar _ Association

(“MBBA”) was created on July 5, 1984 upon the merger of

two of the nation’s oldest Black bar organizations, the

Harlem Lawyers Association and the Bedford Stuyvesant

Lawyers Association. For over sixty years, the Harlem

Lawyers Association (founded 1921) and the Bedford

Stuyvesant Lawyers Association (founded 1933) provided

a voice for Black legal professionals and their communi-

ties. The MBBA proudly continues the rich legacy of these

constituent organizations.

Today, the MBBA is comprised of Black attorneys in

both the public and private sectors, as well as judges and

other public officials. The MBBA is an affiliate of the Na-

tional Bar Association and is governed by a 22-member

Board of Directors. Its daily operations are managed by

its President and six additional elected officers. The pur-

pose of the MBBA is to aid the progress of attorneys of

color, and to assist the progress of the legal profession

generally. The MBBA serves all of the counties of the

Greater New York metropolitan area.

Throughout its 23-year history, MBBA has advocated

equal justice and diversity contributing to increasing

numbers of minorities in the judiciary. Its founding mem-

bers include Hon. George Bundy Smith, former Associate

Judge on the NYS Court of Appeals; Hon. Fern Fisher,

Administrative Judge of the Civil Court of the City of New

York: Hon. L. Priscilla Hall, NYS Supreme Court, Kings

County; and Ilon. Chery! Chambers, NYS Supreme Court,

Kings County.

The MBBA works toexpand the breadth and scope

of diverse social and legal issues programs for the benefit

of the bar and bench as well as the community at large.

MBBA has partnered with a number of other organiza-

tions to provide such programs, including the Mid-

Manhattan Branch of the NAACP, the Asian American

Bar Association, the Puerto Rican Bar Association, the

Dominican Bar Association, the Jewish Lawyers Guild,

3a

Nigerian Lawyers’ Association, New York County Lawyers

Association, the Association of the Bar of the City of New

York, the American Bar Association, the New York State

Bar Association, NAACP Legal Defense Fund, law schools,

and other institutions.

The MBBA sponsors lectures and seminars on Tax

Amnesty, Haywood Burns Memorial, Affirmative Action,

Immigration Law, Attorney Disciplinary Procedures,

Criminal Justice, Jury Selection, Entertainment Law,

Guardian/Receivership Training, Surrogate Court Practice

and Procedure, Labor Law, Estate Planning and other

matters. Members may also qualify for scholarships for

continuing legal education courses.

Recently, the MBBA called for minority bar associa-

tions to jointly screen and interview judicial candidates to

increase the strength of diversity. Other initiatives in-

clude: In December 2006, the Hon. George Bundy Lecture

Series was established to be held annually in conjunction

with the Association of the Bar of the City of New York

and the Ida B. Wells Barnett Awards is held annually in

conjunction with the New York County Lawyers Associa-

tion and MBBA’s expansive CLE program is held in part-

nership with the ABA and other minority bar groups.

Other activities include programs geared to potential

and current law students and mentoring high school stu-

dents. The Metropolitan Black Bar Association Scholar-

ship Fund, Inc., an independent non-profit corporation,

raises funds and grants scholarships to minority law stu-

dents.

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