OPINION OF THE COURT
NEW YORK STATE BD. OF ELECTIONS V.LOPEZ TORRES
552 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NO. 06-766
NEW YORK STATE BOARD OF ELECTIONS, et al.,
PETITIONERS
v. MARGARITA LOPEZ TORRES et al.
on writ of certiorari to the united states court of
appeals for the second circuit
[January 16, 2008]
Justice Scalia delivered the
opinion of the Court.
The State of New York requires
that political parties select their nominees for Supreme Court
Justice at a convention of delegates chosen by party members in a
primary election. We consider whether this electoral system
violates the First Amendment rights of prospective party
candidates.
I
A
The Supreme Court of New York is
the State’s trial court of general jurisdiction, with an Appellate
Division that hears appeals from certain lower courts. See
N. Y. Const., Art. VI, §§7, 8. Under New York’s current
Constitution, the State is divided into 12 judicial districts, see
Art. VI, §6(a); N. Y. Jud. Law Ann. §140 (West 2005), and
Supreme Court Justices are elected to 14-year terms in each such
district, see N. Y. Const., Art. VI, §6(c). The New York
Legislature has provided for the election of a total of 328 Supreme
Court Justices in this fashion. See N. Y. Jud. Law Ann. §140–a
(West Supp. 2007).
Over the years, New York has
changed the method by which Supreme Court Justices are selected
several times. Under the New York Constitution of 1821, Art. IV,
§7, all judicial officers, except Justices of the Peace, were
appointed by the Governor with the consent of the Senate. See 7
Sources and Documents of the U. S. Constitutions 181, 184 (W.
Swindler ed. 1978). In 1846, New York amended its Constitution to
require popular election of the Justices of the Supreme Court (and
also the Judges of the New York Court of Appeals).
Id., at
192, 200 (N. Y. Const. of 1846, Art. VI, §12). In the early
years under that regime, the State allowed political parties to
choose their own method of selecting the judicial candidates who
would bear their endorsements on the general-election ballot. See,
e.g., Report of Joint Committee of Senate and Assembly of
New York, Appointed to Investigate Primary and Election Laws of
This and Other States, S. Doc. No. 26, pp. 195–219 (1910). The
major parties opted for party conventions, the same method then
employed to nominate candidates for other state offices.
Ibid.; see also P. Ray, An Introduction to Political
Parties and Practical Politics 94 (1913).
In 1911, the New York Legislature enacted a
law requiring political parties to select Supreme Court nominees
(and most other nominees who did not run statewide) through direct
primary elections. Act of Oct. 18, 1911, ch. 891, §45(4), 1911
N. Y. Laws 2657, 2682. The primary system came to be
criticized as a “device capable of astute and successful
manipulation by professionals,” Editorial, The State Convention,
N. Y. Times, May 1, 1917, p. 12, and the Republican candidate
for Governor in 1920 campaigned against it as “a fraud” that
“offered the opportunity for two things, for the demagogue and the
man with money,” Miller Declares Primary a Fraud, N. Y. Times,
Oct. 23, 1920, p. 4. A law enacted in 1921 required parties to
select their candidates for the Supreme Court by a convention
composed of delegates elected by party members. Act of May 2, 1921,
ch. 479, §§45(1), 110, 1921 N. Y. Laws 1451, 1454,
1471.
New York retains this system of choosing party
nominees for Supreme Court Justice to this day. Section 6–106 of
New York’s election law sets forth its basic operation: “Party
nominations for the office of justice of the supreme court shall be
made by the judicial district convention.” N. Y. Elec. Law
Ann. §6–106 (West 2007). A “party” is any political organization
whose candidate for Governor received 50,000 or more votes in the
most recent election. §1–104(3). In a September “delegate primary,”
party members elect delegates from each of New York’s 150 assembly
districts to attend the party’s judicial convention for the
judicial district in which the assembly district is located. See
N. Y. State Law Ann. §121 (West 2003); N. Y. Elec. Law
Ann. §§6–124, 8–100(1)(a) (West 2007). An individual may run for
delegate by submitting to the Board of Elections a designating
petition signed by 500 enrolled party members residing in the
assembly district, or by five percent of such enrolled members,
whichever is less. §§6–136(2)(i), (3). These signatures must be
gathered within a 37-day period preceding the filing deadline,
which is approximately two months before the delegate primary.
§§6–134(4), 6–158(1). The delegates elected in these primaries are
uncommitted; the primary ballot does not specify the judicial
nominee whom they will support. §7–114.
The nominating conventions take place one to
two weeks after the delegate primary. §§6–126, 6–158(5). Each of
the 12 judicial districts has its own convention to nominate the
party’s Supreme Court candidate or candidates who will run at large
in that district in the general election. §§6–124, 6–156. The
general election takes place in November. §8–100(1)(c). The
nominees from the party conventions appear automatically on the
general-election ballot. §7–104(5). They may be joined on the
general-election ballot by independent candidates and candidates of
political organizations that fail to meet the 50,000 vote threshold
for “party” status; these candidates gain access to the ballot by
submitting timely nominating petitions with (depending on the
judicial district) 3,500 or 4,000 signatures from voters in that
district or signatures from five percent of the number of votes
cast for Governor in that district in the prior election, whichever
is less. §§6–138, 6–142(2).
B
Respondent López Torres was
elected in 1992 to the civil court for Kings County—a court with
more limited jurisdiction than the Supreme Court—having gained the
nomination of the Democratic Party through a primary election. She
claims that soon after her election, party leaders began to demand
that she make patronage hires, and that her consistent refusal to
do so caused the local party to oppose her unsuccessful candidacy
at the Supreme Court nominating conventions in 1997, 2002, and
2003. The following year, López Torres—together with other
candidates who had failed to secure the nominations of their
parties, voters who claimed to have supported those candidates, and
the New York branch of a public-interest organization called Common
Cause—brought suit in federal court against the New York Board of
Elections, which is responsible for administering and enforcing the
New York election law. See §§3–102, 3–104. They contended that New
York’s election law burdened the rights of challengers seeking to
run against candidates favored by the party leadership, and
deprived voters and candidates of their rights to gain access to
the ballot and to associate in choosing their party’s candidates.
As relevant here, they sought a declaration that New York’s
convention system for selecting Supreme Court Justices violates
their First Amendment rights, and an injunction mandating the
establishment of a direct primary election to select party nominees
for Supreme Court Justice.
The District Court issued a
preliminary injunction granting the relief requested, pending the
New York Legislature’s enactment of a new statutory scheme. 411
F. Supp. 2d 212, 256 (EDNY 2006). A unanimous panel of
the United States Court of Appeals for the Second Circuit affirmed.
462 F. 3d 161 (2006). It held that voters and candidates
possess a First Amendment right to a “realistic opportunity to
participate in [a political party’s] nominating process, and to do
so free from burdens that are both severe and unnecessary.”
Id., at 187. New York’s electoral law violated that right
because of the quantity of signatures and delegate recruits
required to obtain a Supreme Court nomination at a judicial
convention, see
id., at 197, and because of the apparent
reality that party leaders can control delegates, see
id.,
at 198–200. In the court’s view, because “one-party rule” prevailed
within New York’s judicial districts, a candidate had a
constitutional right to gain access to the party’s convention,
notwithstanding her ability to get on the general-election ballot
by petition signatures.
Id., at 193–195, 200. The Second
Circuit’s holding effectively returned New York to the system of
electing Supreme Court Justices that existed before the 1921
amendments to the election law. We granted certiorari. 549 U. S.
___ (2007).
II
A
A political party has a First
Amendment right to limit its membership as it wishes, and to choose
a candidate-selection process that will in its view produce the
nominee who best represents its political platform.
Democratic
Party of United States v.
Wisconsin ex rel. La
Follette,
450
U. S. 107, 122 (1981);
California Democratic Party v.
Jones,
530
U. S. 567, 574–575 (2000). These rights are circumscribed,
however, when the State gives the party a role in the election
process—as New York has done here by giving certain parties the
right to have their candidates appear with party endorsement on the
general-election ballot. Then, for example, the party’s racially
discriminatory action may become state action that violates the
Fifteenth Amendment. See
id., at 573. And then also the
State acquires a legitimate governmental interest in assuring the
fairness of the party’s nominating process, enabling it to
prescribe what that process must be.
Id., at 572–573. We
have, for example, considered it to be “too plain for argument”
that a State may prescribe party use of primaries or conventions to
select nominees who appear on the general-election ballot.
American Party of Tex. v.
White,
415 U. S. 767, 781
(1974). That prescriptive power is not without limits. In
Jones, for example, we invalidated on First Amendment
grounds California’s blanket primary, reasoning that it permitted
non-party members to determine the candidate bearing the party’s
standard in the general election. 530 U. S., at 577. See also
Eu v.
San Francisco County Democratic Central
Comm.,
489 U.
S. 214, 224 (1989);
Tashjian v.
Republican Party
of Conn.,
479
U. S. 208, 214–217 (1986).
In the present case, however, the
party’s associational rights are at issue (if at all) only as a
shield and not as a sword. Respondents are in no position to rely
on the right that the First Amendment confers on political parties
to structure their internal party processes and to select the
candidate of the party’s choosing. Indeed, both the Republican and
Democratic state parties have intervened from the very early stages
of this litigation to defend New York’s electoral law. The weapon
wielded by these plaintiffs is their
own claimed
associational right not only to join, but to have a certain degree
of influence in, the party. They contend that New York’s electoral
system does not go far enough—does not go as far as the
Constitution demands—in assuring that they will have a fair chance
of prevailing in their parties’ candidate-selection process.
This contention finds no support in our
precedents. We have indeed acknowledged an individual’s
associational right to vote in a party primary without undue
state-imposed impediment. In
Kusper v.
Pontikes,
414 U. S. 51, 57
(1973), we invalidated an Illinois law that required a voter
wishing to change his party registration so as to vote in the
primary of a different party to do so almost two full years before
the primary date. But
Kusper does not cast doubt on all
state-imposed limitations upon primary voting. In
Rosario
v.
Rockefeller, 410 U. S. 752 (1973), we
upheld a New York State requirement that a voter have enrolled in
the party of his choice at least 30 days before the previous
general election in order to vote in the next party primary. In any
event, respondents do not claim that they have been excluded from
voting in the primary. Moreover, even if we extended
Kusper to cover not only the right to vote in the party
primary but also the right to run, the requirements of the New York
law (a 500-signature petition collected during a 37-day window in
advance of the primary) are entirely reasonable. Just as States may
require persons to demonstrate “a significant modicum of support”
before allowing them access to the general-election ballot, lest it
become unmanageable,
Jenness v.
Fortson,
403 U. S. 431, 442
(1971), they may similarly demand a minimum degree of support for
candidate access to a primary ballot. The signature requirement
here is far from excessive. See,
e.g.,
Norman v.
Reed,
502
U. S. 279, 295 (1992) (approving requirement of 25,000
signatures, or approximately two percent of the electorate);
White,
supra, at 783 (approving requirement of
one percent of the vote cast for Governor in the preceding general
election, which was about 22,000 signatures).
Respondents’ real complaint is not that they
cannot vote in the election for delegates, nor even that they
cannot run in that election, but that the convention process that
follows the delegate election does not give them a realistic chance
to secure the party’s nomination. The party leadership, they say,
inevitably garners more votes for its slate of delegates (delegates
uncommitted to any judicial nominee) than the unsupported candidate
can amass for himself. And thus the leadership effectively
determines the nominees. But this says nothing more than that the
party leadership has more widespread support than a candidate not
supported by the leadership. No New York law compels election of
the leadership’s slate—or, for that matter, compels the delegates
elected on the leadership’s slate to vote the way the leadership
desires. And no state law prohibits an unsupported candidate from
attending the convention and seeking to persuade the delegates to
support her. Our cases invalidating ballot-access requirements have
focused on the requirements themselves, and not on the manner in
which political actors function under those requirements. See,
e.g.,
Bullock v.
Carter,
405 U. S. 134 (1972)
(Texas statute required exorbitant filing fees);
Williams
v.
Rhodes,
393 U. S. 23 (1968) (Ohio
statute required,
inter alia, excessive number of petition
signatures);
Anderson v.
Celebrezze,
460 U. S. 780 (1983)
(Ohio statute established unreasonably early filing deadline). Here
respondents complain not of the state law, but of the voters’ (and
their elected delegates’) preference for the choices of the party
leadership.
To be sure, we have, as described above,
permitted States to set their faces against “party bosses” by
requiring party-candidate selection through processes more
favorable to insurgents, such as primaries. But to say that the
State can require this is a far cry from saying that the
Constitution demands it. None of our cases establishes an
individual’s constitutional right to have a “fair shot” at winning
the party’s nomination. And with good reason. What constitutes a
“fair shot” is a reasonable enough question for legislative
judgment, which we will accept so long as it does not too much
infringe upon the party’s associational rights. But it is hardly a
manageable constitutional question for judges—especially for judges
in our legal system, where traditional electoral practice gives no
hint of even the existence, much less the content, of a
constitutional requirement for a “fair shot” at party nomination.
Party conventions, with their attendant “smoke-filled rooms” and
domination by party leaders, have long been an accepted manner of
selecting party candidates. “National party conventions prior to
1972 were generally under the control of state party leaders” who
determined the votes of state delegates. American Presidential
Elections: Process, Policy, and Political Change 14 (H. Schantz ed.
1996). Selection by convention has never been thought
unconstitutional, even when the delegates were not selected by
primary but by party caucuses. See
ibid.
The Second Circuit’s judgment finesses the
difficulty of saying how much of a shot is a “fair shot” by simply
mandating a primary until the New York Legislature acts. This was,
according to the Second Circuit, the New York election law’s
default manner of party-candidate selection for offices whose
manner of selection is not otherwise prescribed. Petitioners
question the propriety of this mandate, but we need not pass upon
that here. Even conceding its propriety, there is good reason to
believe that the elected members of the New York Legislature remain
opposed to the primary, for the same reasons their predecessors
abolished it 86 years ago: because it leaves judicial selection to
voters uninformed about judicial qualifications, and places a high
premium upon the ability to raise money. Should the New York
Legislature persist in that view, and adopt something different
from a primary and closer to the system that the Second Circuit
invalidated, the question whether
that provides enough of
a “fair shot” would be presented. We are not inclined to open up
this new and excitingly unpredictable theater of election
jurisprudence. Selection by convention has been a traditional means
of choosing party nominees. While a State may determine it is not
desirable and replace it, it is not unconstitutional.
B
Respondents put forward, as a
special factor which gives them a First Amendment right to revision
of party processes in the present case, the assertion that party
loyalty in New York’s judicial districts renders the
general-election ballot “uncompetitive.” They argue that the
existence of entrenched “one-party rule” demands that the First
Amendment be used to impose additional competition in the
nominee-selection process of the parties. (The asserted “one-party
rule,” we may observe, is that of the Democrats in some judicial
districts, and of the Republicans in others. See 411
F. Supp. 2d, at 230.) This is a novel and implausible
reading of the First Amendment.
To begin with, it is hard to
understand how the competitiveness of the general election has
anything to do with respondents’ associational rights in the
party’s selection process. It makes no difference to the person who
associates with a party and seeks its nomination whether the party
is a contender in the general election, an underdog, or the
favorite. Competitiveness may be of interest to the voters in the
general election, and to the candidates who choose to run
against the dominant party. But we have held that those
interests are well enough protected so long as all candidates have
an adequate opportunity to appear on the general-election ballot.
In
Jenness we upheld a petition-signature requirement for
inclusion on the general-election ballot of five percent of the
eligible voters, see 403 U. S., at 442, and in
Munro v.
Socialist Workers Party,
479 U. S. 189, 199
(1986), we upheld a petition-signature requirement of one percent
of the vote in the State’s primary. New York’s general-election
balloting procedures for Supreme Court Justice easily pass muster
under this standard. Candidates who fail to obtain a major party’s
nomination via convention can still get on the general-election
ballot for the judicial district by providing the requisite number
of signatures of voters resident in the district. N. Y. Elec.
Law Ann. §6–142(2). To our knowledge, outside of the Fourteenth and
Fifteenth Amendment contexts, see
Jones, 530 U. S., at
573, no court has ever made “one-party entrenchment” a basis for
interfering with the candidate-selection processes of a party. (Of
course, the
lack of one-party entrenchment will not cause
free access to the general-election ballot to validate an otherwise
unconstitutional restriction upon participation in a party’s
nominating process. See
Bullock, 405 U. S., at
146–147.)
The reason one-party rule is entrenched may be
(and usually is) that voters approve of the positions and
candidates that the party regularly puts forward. It is no function
of the First Amendment to require revision of those positions or
candidates. The States can, within limits (that is, short of
violating the parties’ freedom of association), discourage party
monopoly—for example, by refusing to show party endorsement on the
election ballot. But the Constitution provides no authority for
federal courts to prescribe such a course. The First Amendment
creates an open marketplace where ideas, most especially political
ideas, may compete without government interference. See
Abrams v.
United States,
250 U. S. 616, 630
(1919) (Holmes, J., dissenting). It does not call on the federal
courts to manage the market by preventing too many buyers from
settling upon a single product.
Limiting respondents’ court-mandated “fair
shot at party endorsement” to situations of one-party entrenchment
merely multiplies the impracticable lines courts would be called
upon to draw. It would add to those alluded to earlier the line at
which mere party popularity turns into “one-party dominance.” In
the case of New York’s election system for Supreme Court Justices,
that line would have to be drawn separately for each of the 12
judicial districts—and in those districts that are “competitive”
the current system would presumably remain valid. But why limit the
remedy to
one-party dominance? Does not the dominance of
two parties similarly stifle competing opinions? Once again, we
decline to enter the morass.
* * *
New York State has thrice (in
1846, 1911, and 1921) displayed a willingness to reconsider its
method of selecting Supreme Court Justices. If it wishes to return
to the primary system that it discarded in 1921, it is free to do
so; but the First Amendment does not compel that. We reverse the
Second Circuit’s contrary judgment.
It is so ordered.
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