The Supreme Court's Recent Opinion in New York State Board of Elections v. Lopez Torres: A Wise Decision to Stop Meddling in the States' Primary Systems

By MARCI HAMILTON
Thursday, Jan. 24, 2008

On January 16, the U.S. Supreme Court issued its decision in New York State Board of Elections v. Lopez Torres. In that opinion, the Court made the right call by backing off from a First Amendment precipice it had previously constructed.

In its 2000 decision in California Democratic Party v. Jones, the Court came perilously close to micromanaging the politics of the states' primary systems for choosing candidates. Fortunately, this year, the Court has adopted a position that is more respectful toward the states and our system of federalism.

California Democratic Party v. Jones: The U.S. Supreme Court Tells California How to Run its Primaries

The Court's earlier decision in California Democratic Party v. Jones addressed California's Proposition 198, which had changed the state's closed primaries to a blanket primary system. Before Prop. 198, voters had voted solely for candidates in their chosen party. After Prop. 198, every voter received the same ballot with all candidates, regardless of party affiliation, listed. Party nominees were those who received the most votes within their party.

Prop. 198 was intended to "weaken" the extremes of the parties, and open the door for "moderate problem-solvers." The Democratic, Republican, Libertarian, and Peace and Freedom Parties challenged Prop. 198 in federal court, as a violation of their rights of association under the First Amendment. (First Amendment rights of association are implied from the right to freedom of speech, since association is necessary for the exercise of free speech rights.) They argued that they had the right to exclude non-party members from choosing the leadership of their parties.

The case worked its way up to the Supreme Court, and the Court agreed, and struck down Prop. 198. Relying on a novel interpretation of the First Amendment, the Court held that Prop. 198 was unconstitutional because it laid the groundwork for nonparty members to impose on a party a candidate of which the party does not approve.

The U.S. Court of Appeals for the Ninth Circuit had upheld Prop. 198, because it concluded that, at most, such interference would influence only a very small number of races. The U.S. Supreme Court, however, held that even if one election were affected, it would be too many, and a violation of the First Amendment's right of association.

If one simply steps back from the doctrine and employs common sense, the problems with the Court's approach come to the fore:

First, why is the U.S. Supreme Court immersing itself in the processes by which sovereign States choose to elect their officials? Doctrinally, this concern implicates constitutional federalism.

Second, shouldn't the Court have been troubled by the use of an initiative process (that is, direct democracy rather than deliberative, representative democracy) to determine voting processes? Doctrinally, this implicates the Constitution's Guarantee Clause: "The United States shall guarantee to every State in this Union a Republican Form of Government."

Third, and finally, why is the Supreme Court so intent on preserving the political parties, and should it be? This issue implicates doctrines of nonjusticiability - that is, doctrines that suggest that some disputes are inappropriate for the federal courts to resolve. One key nonjusticiability doctrine is the "political question" doctrine, which counsels courts to avoid resolving disputes better resolved by the political process.

Even the Liberal Justice Stevens Saw and Noted the Serious Federalism Issues Arising from the U.S. Supreme Court's Striking Down a State's Primary System

Surprisingly, it was the usually very liberal (but sometimes maverick) Justice Stevens who invoked federalism as the reason to reject the Court's new First Amendment theory, as set out in the California Democratic Party case. In dissent, he argued persuasively as follows:

"A State's power to determine how its officials are to be elected is a quintessential attribute of sovereignty. This case is about the State of California's power to decide who may vote in an election conducted, and paid for, by the State. The United States Constitution imposes constraints on the States' power to limit access to the polls, but we have never before held or suggested that it imposes any constraints on States' power to authorize additional citizens to participate in any state election for a state office. In my view, principles of federalism require us to respect the policy choice made by the State's voters in approving Proposition 198."

Justice Stevens makes a very strong point about sovereignty: If the states can be told by the federal government how to construct the machinery of their elections, they do not have much sovereignty left.

The conservatives in the majority, who had been strong proponents of federalism in earlier cases involving congressional power, obviously were not persuaded to see this as the proper way of framing the question. Their view that Prop. 198 was unconstitutional, and their decision to strike it down, are thus further proof that the federalism "revolution" is best viewed, in retrospect, as more of an adjustment in discrete areas of the law -- especially now, with Chief Justice William Rehnquist gone and Justice O'Connor retired.

How Prop. 198 Also May Have Violated the Constitution's Guarantee Clause

If the Court was intent on striking down Prop.198, moreover, there was a much more sensible way to do so: Invoke the long-mothballed Guarantee Clause.

The California initiative system permits individual voters to secretly cast ballots for important public policies, without ever having to account publicly for their views. It is a convenient alternative for legislators shirking difficult issues, and it lets voters follow their less respectable instincts in the privacy of the voting booth.

This system is disturbing to begin with, and even more so if the issue is how to create a fair system of elections. In this area, especially, the Court could have held that only elected representatives -- who must be publicly accountable to the people and articulate their reasons for their choices -- may make such decisions. Such a decision would have introduced public accountability into a system that historically has been capable of building some ugly barriers grounded in racism and sexism. The problem, however, is that the Court has refused to enforce the Guarantee Clause, partly to defer to state processes. It is the height of irony that it would eschew the Guarantee Clause's direct application to governing structures in favor of a theory of the First Amendment that addresses election processes.

Another Valid Reason for the Court to Have Gone the Other Way in the California Democratic Party Case: Nonjusticiability

Finally, the Court had yet another avenue available to it here: It could have held that state construction of its electoral system is a political question, properly left to the political process, and thus is nonjusticiable.

Instead of creating a First Amendment right of political parties that enlarges and entrenches their power, the Court could have stayed out of the process altogether and permitted the play of California politics to determine how candidates would be chosen. After living with the blanket primary, the state may well have come to the conclusion that it was a wrongheaded attempt at political reform. If there is any rule in politics, it is that reform almost always has unintended consequences. Perhaps California voters were experimenting to find the best system - something that, in the "laboratory of the States" that federalism honors, they (or, at least, their representatives) were entitled to do.

Instead of wisely stepping out of the fray, however, the Court inserted its First Amendment doctrine into that highly political dynamic, securing the power of the already-embedded political parties. This seems, at best, a highly dubious role for the Court, or any court, to play.

New York State Board of Elections v. Lopez Torres: How the Court Used the New Decision to Wisely Back Down From Its Prior Aggressive Position

In light of this history, the Court's recent case, New York State Board of Elections v. Lopez Torres, is a breath of fresh air. It retreats from a strong reading of California Democratic Party to hold that the state's primary system for electing judges is constitutional. Like that prior case, this case, too, was prompted by objections to the entrenched power of the political parties. This time, however, it was potential candidates who were complaining about the process. They said that if they did not have the support of party bosses, then the primary process operated to undermine their candidacies. They claimed they did not have a "fair chance of prevailing in their parties' candidate-selection process," and that, as a result, their First Amendment rights of association had been violated.

Wisely, no member of the Court embraced their theory - which would have transformed the First Amendment right of association into a right to run under certain political conditions. Yet it was disappointing to see that the Court simply drew a line, rather than junking California Democratic Party's logic entirely. Why keep the First Amendment available as a tool for those dissatisfied with their level of political power? (Meanwhile, concerns regarding federalism and nonjusticiability were ignored yet again.)

Justice Scalia's opinion is relatively short, which is usually a virtue, but in this case, regrettable. More explanation by the Court might have forestalled future attempts to expand California Democratic Party beyond its reasonable parameters.

Although the Court rightly declined to act here, in our federal system there is still great leeway for New York to act, for the system of electing judges in New York is hardly exemplary. As Justice Kennedy, in concurrence, stated, "If New York statutes for nominating and electing judges do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and changed now." But they need to be changed by New York itself, as Justice Kennedy also recognized.

It should be clear by now that the U.S. Supreme Court is hardly the body best-equipped to achieve or speed positive change in State election systems or politics in general. In the future, the Court should seriously consider overruling or sharply limiting California Democratic Party, to let the states spearhead their own reform.


Marci A. Hamilton is a Visiting Professor of Public Affairs and the Kathleen and Martin Crane Senior Research Fellow at the Program in Law and Public Affairs at Princeton University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Professor Hamilton's forthcoming book, which will be published this spring is entitled Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). Professor Hamilton's email address is Hamilton02@aol.com.

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