The following summary was written by Scott Street, a student at Loyola Law School in Los Angeles who worked as a summer associate at Akin Gump in 2007.

If yesterday’s oral argument is any guide, the Court will reverse the Second Circuit's decision that New York's judicial electoral system violates the Constitution. In doing so, it may finally clarify some vexing questions about its election law jurisprudence, including how the right to vote (fundamental for purposes of the Equal Protection Clause but not a constitutional right) affects the First Amendment rights of voters and parties, and vice versa. (To read the transcript of the argument, click here.)

Although it challenged both sides, the Court spent much of Wednesday's argument peppering Respondent's counsel, Frederick Schwarz, Jr., with difficult questions and hypotheticals. Justice David Souter led the charge, repeatedly couching the asserted "burdens" on Judge Margarita Lopez Torres as burdens on her ability to influence the ultimate decision makers, not burdens on her ability to access the electoral process.

One discussion in particular captured the Court's concerns. Justice Antonin Scalia had pressed Schwarz on whether a state law that gave the political parties freedom to choose any method they wanted to select their judicial nominees would violate the Constitution. For all we know, the party might select its candidates by playing pin the tail on the donkey (no pun intended). Torres' counsel conceded that such a scheme would not violate the Constitution. But he argued that, if a state expressly gave political bosses the power to select judicial nominees, without any input from the party members, that scheme would violate the Constitution.

It is difficult to rationalize those two positions "“ a theme that a majority of the Court picked up on in the latter half of Schwarz's argument. His fallback position "“ that, regardless of the electoral scheme chosen, the Constitution affords voters and candidates a "meaningful opportunity to participate" in an election "“ also did not seem to win over the Court. Even Justice Ginsburg, one of the few justices who vigorously questioned the Petitioners' lawyers, wondered how the Constitution could allow states to not provide for the election of judges at all, yet somehow violate the Constitution when they ask for popular input in a manner that does not raise any Equal Protection concerns (the parties concede that this process does not violate the Equal Protection Clause).

Schwarz tried to resolve those difficulties by invoking the language of the Court's previous election law decisions, urging it to look beyond the language of the New York statute to make a "realistic assessment" of the "burdens" the law places on voting and associational rights. That persuaded the lower courts to strike down the New York statute here, but the Supreme Court kept stressing its flaws, envisioning a slippery slope that would allow any person who cannot win her nomination of choice to challenge an electoral system as unconstitutional. The argument also reflected serious federalism concerns. New York wants the public to have input in selecting trial judges. But it abandoned direct elections for judicial offices because it did not think that system worked. Finding this system unconstitutional would force the state to choose between a direct primary and appointment: a choice that it finds untenable.

Schwarz tried to dispute that point but as Theodore Olson, the former Solicitor General and one of the lawyers who argued for the Petitioners, pointed out, Torres specifically asked for a direct primary in her complaint. The fact that she did so underscores one of the most interesting aspects of this case: Torres thought the New York system unconstitutional not because of any flaws in the system itself but because of the way that powerful political bosses in New York City manipulate it. That manipulation, of course, does not violate the Constitution because it is not state action, so Torres had to use her failure in the electoral process as a means of attacking the statute itself, all while using the Supreme Court's burden framework to get around the difficult doctrinal issues her case presented.

That won over the lower courts but it met fierce resistance in the Supreme Court, and it seems virtually certain to reverse the Second Circuit's decision. How it does so will be more interesting. On the one hand, the Court could simply say that the burdens imposed on voters and candidates in this case were minimal and do not raise constitutional concerns "“ a position that would probably garner at least seven votes, especially given the competing First Amendment rights of parties. But Justice Souter's comments reflect greater concerns about how the Court should use its "burden" framework, especially in the primary context. Answering that question would allow the Court to better define the way that First Amendment associational rights and the right to vote intersect and where each is implicated in the electoral process.

Posted in NY Board of Elections v. Lopez-Torres, Uncategorized