The following analysis is by Scott Street, a student at Loyola Law School in Los Angeles and a former Akin Gump summer associate.  Scott maintains this case’s SCOTUSwiki page, which can be found here.

Yesterday, the Supreme Court unanimously reversed the Second Circuit’s decision in Lopez Torres (the Court has apparently settled on using the name “Lopez Torres” instead of “Torres”, as the respondent judge’s name was listed on earlier Court documents).

In an opinion authored by Justice Scalia and joined by every justice except Justice Kennedy, the Court easily concluded that New York’s judicial election process did not violate the associational rights of voters and candidates.  In doing so, the Court offered some clarity to the muddle of election law jurisprudence that it has developed over the past 40 years.

First, the Court distinguished between the associational rights of parties discussed in cases like American  Party of Texas v. White and California Democratic Party v. Jones and the “individual’s associational right to vote in a party primary without undue state-imposed impediment” at issue in Lopez Torres.  It construed the individual right narrowly, explaining that it merely protects voters from being “excluded from voting in the primary.”  The voters in Lopez Torres had no chance of meeting that standard.  That was why they tried to take the “burden” analysis of ballot access cases like Storer and Bullock and extend it to a First Amendment inquiry in the primary context.

But the Court saw through that ploy.  The “real complaint” of the Lopez Torres plaintiffs, the Court explained, “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.”  But, as I have pointed out on this site several times and as the Court recognized today, that complaint has nothing to do with the constitutionality of the electoral process.  In that sense, Justice Scalia noted that the ballot access cases on which the plaintiffs relied “have focused on the requirements themselves, and not on the manner in which political actors function under those requirements.”  Because the Lopez Torres plaintiffs “complain[ed] not [about] the state law, but [about] the voters’ (and their elected delegates’) preference for the choices of the party leadership,” the Court refused to let them use the burden analysis of the ballot access cases.

That all came in the first section of the majority opinion.  In its second part, the Court held that the respondents could not succeed on their asserted “First Amendment right to revision of party processes” based on the uncompetitiveness of New York’s judicial elections.  To be sure, as the Court points out, “it is hard to understand how the competitiveness of the general election has anything to do with the respondents’ associational rights in the party’s selection process.”  However, as far as I can remember, the respondents never claimed such a narrow associational right and they never based it purely on competitiveness.  Rather, they argued that the lack of competition in the general election showed just how greatly New York’s electoral process burdened their associational and voting rights.

In that sense, Lopez Torres leaves many questions unanswered.  The Court rejected the Second Circuit’s burden analysis-but for unstated reasons.  For example, it did not explain whether the burden analysis only applies in Equal Protection cases where state action (be it a state election law or a political party that the Court deems a state actor) impinges on the right to vote, although its analysis suggests such a limitation.  And it created even more confusion about the intersection of the right to vote (non-absolute but considered fundamental for Equal Protection purposes) and the First Amendment freedom of association.  In one section, it described the associational rights of candidates and voters narrowly, stating that the First Amendment only “creates an open marketplace where ideas, most especially political ideas, may compete without government interference” (emphasis added).  But it also described the asserted right in this case as an “associational right to vote.”  If the First Amendment freedom to associate and the fundamental right to vote really are so intertwined, why should the Second Circuit’s burden analysis not apply?

Justice Kennedy, in a concurrence joined by Justice Breyer, suggested just that.  He would have extended the Storer line of cases to primary challenges like Lopez Torres, although he found the burdens to be minimal in this case because New York has additional, reasonable avenues for unsuccessful candidates and their supporters to use to get on the ballot.  The majority seems to disagree with that proposition.  But it would have been nice to explain why.

Perhaps the majority had other concerns with this case and simply fit its circular file into the square peg of electoral mechanics cases.  For instance, two things that clearly bothered the majority were not even addressed by the parties: (1) the fact that the respondents’ real complaint involved private action, not state action; and (2) the fact that it viewed the “fair shot” that the respondents wanted  as “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 a party nomination.”

That latter concern echoes the logic of the Court’s political question doctrine and this case would have been a good contender for its services.  As Justice Stevens noted in a brief concurring opinion, quoting Justice Thurgood Marshall, “The Constitution does not prohibit legislatures from enacting stupid laws.”

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