Margarita López TORRES, Steven Banks, C. Alfred Santillo, John J. Macron, Lili Ann Motta, John W. Carroll, Philip C. Segal, Susan Loeb, David J. Lansner, Common Cause/NY, Plaintiffs-Appellees,
v.
NEW YORK STATE BOARD OF ELECTIONS, Neil W. Kelleher, Carol Berman, Helen Moses Donohue, and Evelyn J. Aquila, in their official capacities as Commissioners of the New York State Board of Elections, Defendants-Appellants,
New York County Democratic Committee, New York Republican State Committee, Associations of New York State Supreme Court Justices in the City and State of New York, and Justice David Demarest, individually, and as President of the State Association, Defendants-Intervenors-Appellants,
Eliot Spitzer, Attorney General of the State of New York, Statutory-Intervenor-Appellant.
Docket No. 06-0635-CV.
United States Court of Appeals, Second Circuit.
Argued June 7, 2006.
Decided August 30, 2006.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Frederick A.O. Schwarz, Jr., Brennan Center for Justice at NYU School of Law (Deborah Goldberg, James Sample, Adam H. Morse, on the brief), New York, NY, for Plaintiffs-Appellees.
Kent A. Yalowitz, Arnold & Porter LLP (Angela D. Givens, Glynn Spelliscy, Elizabeth A. Wells, J. Alex Brophy, Amalia Jorns, on the brief), New York, NY, for Plaintiffs-Appellees.
Jeremy M. Creelan, Jenner & Block LLP (Brian Hauck, Elizabeth Valentina, Carletta F. Higginson, on the brief), New York, NY, for Plaintiffs-Appellees.
Andrew J. Rossman, Akin Gump Strauss Hauer & Feld LLP (Steven M. Pesner, James P. Chou, James E. d'Auguste, Vincenzo A. DeLeo, Jamison A. Diehl, on the brief), New York, NY, for Defendant-Intervenor-Appellant New York County Democratic Committee.
Arthur W. Greig, New York, NY, for Defendant-Intervenor-Appellant New York County Democratic Committee.
Todd D. Valentine, Special Counsel to State Board of Elections, Albany, NY, for Defendants-Appellants New York State Board of Elections, Neil W. Kelleher, Carol Berman, Helena Moses Donohue, and Evelyn J. Aquila.
Carter G. Phillips, Sidley Austin LLP, Washington, D.C., for Defendant-Intervenor-Appellant New York Republican State Committee.
Joseph L. Forstadt, Stroock & Stroock & Lavan (Ernst H. Rosenberger, Kevin J. Curnin, David Sifre, Mary A. Gorman, on the brief), New York, NY, for Defendants-Intervenors-Appellants Associations of New York State Supreme Court Justices in the City and State of New York and the Hon. David Demarest.
Caitlin J. Halligan, Solicitor General (Eliot Spitzer, Attorney General of the State of New York, Robert H. Easton, Mariya S. Treisman, Joel Graber, on the brief), New York, NY, as Statutory-Intervenor-Appellant and Counsel for Amicus Curiae New York State Legislature.
Adrian Zuckerman, Lowenstein Sandler PC (Robert C. Boneberg, Andrew R. Tulloch, Franklin R. Weissberg, on the brief), New York, NY, for Amicus Curiae Women's Bar Association of the State of New York.
Steven De Castro, Law Office of Steven De Castro, New York, NY, for Amici Curiae Boards of the Metropolitan Black Bar Association, Dominican Bar Association, Korean American Lawyers Association of Greater New York, and James F. Castro-Blanco, Esq., Eliezer Rodriguez, Esq., and Fiordaliza A. Rodriguez, Esq., in their individual capacities.
John Z. Marangos (Denise Marangos, Robert Mulhall, on the brief), Staten Island, NY, for Amicus Curiae Richmond County Bar Association.
Christopher W. Chan (Steven B. Shapiro, on the brief), New York, NY, for Amicus Curiae Asian American Bar Association of New York.
Preeta D. Bansal, Skadden, Arps, Slate, Meagher & Flom LLP (Sheila L. Birnbaum; Bettina B. Plevan, President, The Association of the Bar of the City of New York, on the brief), New York, NY, for Amicus Curiae Bar of the City of New York.
Jonathan R. Dowell, Heller Ehrman LLP (Holly K. Kulka, Ellen G. Jalkut, Anh P. Le, on the brief), New York, NY, for Amicus Curiae Former New York State Judges.
Mariann Meier Wang, Emery Celli Brinckerhoff & Abady LLP, New York, NY, for Amici Curiae The Asian American Legal Defense and Education Fund, The Puerto Rican Legal Defense and Education Fund, The Puerto Rican Bar Association, Latino Lawyers Association of Queens County, Inc., The Center for Law and Social Justice, The Amistad Black Bar Association of Long Island, and the Rochester Black Bar Association.
Monique Ferrell, Assistant District Attorney (Charles J. Hynes, District Attorney, Kings County, on the brief), Brooklyn, NY, for Amicus Curiae Charles J. Hynes, District Attorney, Kings County.
Norman L. Reimer, President, New York County Lawyers' Association, (Peter Bienstock, Stephanie G. Wheeler, Bradley P. Smith, Christopher F. Nelson, on the brief), New York, NY, for Amicus Curiae New York County Lawyers' Association.
Katherine B. Forrest, Cravath, Swaine & Moore LLP (Joanne M. Gentile, Daniel P. Murphy, on the brief), New York, NY, for Amicus Curiae Fund for Modern Courts.
Bruce S. Kaplan, Friedman Kaplan Seiler & Adelman, LLP (Gaurav I. Shah, Laurence D. Borton, Jonathan Gottfried; Edward I. Koch, Bryan Cave LLP, on the brief), New York, NY, for Amicus Curiae Edward I. Koch.
Tom Stein, Proskauer Rose LLP (Charles Sims, Peter Sherwin, on the brief), New York, NY, for Amicus Curiae Citizens Union of the City of New York.
Arthur N. Eisenberg (Steven Alan Reiss, David R. Singh, William R. Cruse, Weil, Gotshal & Manges LLP, on the brief), New York, NY, for Amicus Curiae New York Civil Liberties Union.
Christopher Earl Strunk, Brooklyn, NY, pro se as amicus curiae.
Before: STRAUB, SOTOMAYOR, and HALL, Circuit Judges.
STRAUB, Circuit Judge.
This case requires us to peer inside New York State's political clubhouses and determine whether party leaders have arrogated to themselves a choice that belongs to the people. The task falls to us by way of interlocutory appeal. Specifically, defendants-appellants appeal from the grant of a preliminary injunction by the District Court for the Eastern District of New York (John Gleeson, Judge).
In its opinion and order, the District Court found a clear likelihood that New York State's process for nominating Supreme Court Justices violates the First Amendment rights of plaintiffs-appellees, who consist of judicial candidates, Republican and Democratic voters from across the state, and the non-profit group Common Cause/NY.1 Accordingly, the Court preliminarily enjoined defendants-appellants New York State Board of Elections and its commissioners from enforcing the statutory provisions that regulate the nominating process. Although the Court declined to order the State Legislature to enact a new nominating system, it required that nominations for the office of Supreme Court Justice proceed by primary election until the Legislature enacts a new scheme of its own accord. The District Court then stayed its order until after this year's election cycle, scheduled to conclude in November.
The precise issues presented are whether the District Court exceeded its discretion in (1) finding a clear likelihood that New York State's system for nominating its Supreme Court Justices violates the First Amendment, and (2) remedying that violation by (a) facially enjoining the relevant statutory provisions and (b) requiring that Supreme Court Justice nominations be settled through primary elections until the State Legislature enacts corrective legislation. We hold that the District Court acted within its allowable discretion on all scores.
Given the number of issues involved, we set out the following table of contents:
BACKGROUND .................................................................... 171
I. NEW YORK STATE'S ELECTORAL SCHEME ...................................... 171
A. The Primary Election ................................................ 172
B. The Delegate Lobbying Period ........................................ 176
C. The Nominating Conventions .......................................... 178
D. The General Election ................................................ 178
E. The Candidacy of Margarita López Torres ............................. 178
II. PROCEDURAL HISTORY .................................................... 181
DISCUSSION .................................................................... 183
I. THE DISTRICT COURT DID NOT EXCEED ITS ALLOWABLE DISCRETION IN
CONCLUDING THAT PLAINTIFFS DEMONSTRATED A CLEAR LIKELIHOOD OF
SUCCESS ON THEIR FIRST AMENDMENT CLAIM ................................ 183
A. Standard of Review .................................................. 183
B. Substantive First Amendment Law ..................................... 183
C. The District Court Did Not Find and Apply An Overly Broad First
Amendment Right of Association .................................... 185
1. The First Amendment's Guarantee of Freedom of Association
Applies to New York's Judicial Nominating Process .............. 185
2. The First Amendment Guarantees Voters and Candidates a
Realistic Opportunity to Participate in the Nominating
Phase Free From Severe and Unnecessary Burdens ................. 187
3. The District Court Recognized and Applied
the Appropriate First Amendment Right .......................... 188
D. A Delegate-Based Nominating Convention System Is Not Per Se
Constitutional .................................................... 189
E. The Associational Rights of Political Parties Do Not Justify New
York's Nominating Scheme .......................................... 190
F. The Existence of an Alternate Means of Access to the General
Election Ballot Does Not Automatically Render Constitutional
New York's Regulation of the Primary Election Ballot and Nominating
Convention ........................................................ 193
G. The Burdens Imposed by N.Y. Elec. L. §§ 6-106, -124 Are Severe ...... 195
1. The District Court Properly Assessed the Burdens from the
Standpoint of a Reasonably Diligent Candidate Who Lacks
the Support of Party Leadership ................................ 195
2. New York's Judicial Election Process Severely Burdens the
Associational Rights of Voters and Candidates .................. 196
H. The District Court Properly Concluded that New York's Electoral
Scheme Is Not Narrowly Tailored to Further A Compelling State
Interest .......................................................... 201
II. THE DISTRICT COURT WAS NOT REQUIRED TO PROVIDE NOTICE PURSUANT TO
FED. R. CIV. P. 65(A)(2) .............................................. 204
III. THE DISTRICT COURT DID NOT EXCEED ITS ALLOWABLE DISCRETION IN
ORDERING THAT JUDICIAL NOMINATIONS PROCEED VIA PRIMARY ELECTION
UNTIL THE LEGISLATURE ENACTS CORRECTIVE LEGISLATION ................... 204
A. General Remedial Principles ......................................... 204
B. The District Court Acted Within Its Discretion in Crafting a
Remedy ......... 205
CONCLUSION .................................................................... 208
BACKGROUND
I. New York State's Electoral Scheme
In the country's other 49 states, the term "Supreme Court Justice" might signify a member of the highest appellate court. In New York, however, that term denotes a judge of the State's general jurisdiction trial court. Apart from peculiar terminology, New York employs a method of selecting its Supreme Court Justices that is unique in the nation.
In 1846, New York amended its constitution to require that Supreme Court Justices be popularly elected. In particular, Article VI, section 6 of the state constitution provides, "The justices of the supreme court shall be chosen by the electors of the judicial district in which they are to serve." N.Y. Const. art. VI, § 6(c). Since adopting that constitutional provision, New York has experimented with different methods of effecting its guarantee of public choice.
At first, the State's political parties employed conventions to designate their Supreme Court nominees. That all changed in 1911, when the State Legislature, buoyed by a wave of progressive politics, provided for nominations by primary election. However, over the next decade, concern grew that bare-knuckled primary elections dissuaded qualified candidates 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 political bosses who directed their party's large election apparatus.
As a result of those concerns, in 1921 New York recast the electoral process for Supreme Court Justices. The Legislature did not entirely dispense with primary elections. Instead, it enacted a three-part scheme that combines a primary election, a nominating convention, and a general election.2 During the first phase, the State holds a primary election at which rank-and-file party members elect judicial delegates. N.Y. Elec. L. §§ 6-106, -124. Next, those delegates attend a convention at which they select their party's nominees. N.Y. Elec. L. §§ 6-106, -124, -158. The individual so chosen automatically receives a place on the general election ballot. N.Y. Elec. L. § 7-116(1). Last, the State holds a general election at which Justices are elected. N.Y. Elec. L. § 8-100(1)(c).
Having described the basic form of the judicial election process, we next examine in greater detail the manner in which that process actually functions. In so doing, we rely on the facts found by the District Court during a comprehensive preliminary injunction hearing, and which we conclude are not clearly erroneous. That hearing spanned 13 days and included testimony from 24 witnesses. The District Court admitted 10,000 pages of documentary evidence and nearly 500 pages of proposed fact findings and legal conclusions. With the benefit of that robust record and the District Court's findings, we next describe the reality of Supreme Court elections in present-day New York.
A. The Primary Election
A network of district lines defines the primary election battlefield. Each judicial candidate stands for election in a particular judicial district. New York currently is divided into 12 judicial districts. N.Y. Const. art. VI, § 6(a), (b). In turn, each judicial district encompasses several other smaller political subdivisions known as assembly districts. See generally N.Y. Const. art. III, § 5. Because judicial districts are so large, each one comprises at least nine assembly districts and as many as 24. The appendix to this opinion contains a map of New York State showing all county borders and assembly and judicial district lines, as well as a similar map of New York City. The appendix also contains individual maps of the First, Second, Tenth, Eleventh, and Twelfth Judicial Districts.
As noted above, judicial candidates do not run in the primary election themselves. Instead, they have the option of assembling a slate of delegates to run on their behalf, with an eye toward placing those delegates at the judicial nominating convention so that they can cast their votes in favor of the candidate with whom they are affiliated. N.Y. Elec. L. §§ 6-106, -124. This entire slate of delegates, however, does not run for election as one group across the entire judicial district. Instead, small subgroups of delegates stand for election within each assembly district comprising the larger judicial district. N.Y. Elec. L. § 6-124. In this fashion, the primary election consists of a series of contests between groups of delegates within each assembly district.
New York allows each political party to determine how many delegate slots to allot per assembly district, but requires that this number "be substantially in accordance with the ratio, which the number of votes cast for the party candidate for the office of governor, on the line or column of the party at the last preceding election for such office, in any unit of representation, bears to the total vote cast at such election for such candidate on such line or column in the entire state." N.Y. Elec. L. § 6-124. State law also allows each political party to provide for an equal number of "alternate delegates" who may attend the convention and vote in the place of delegates who do not attend, which, as described, below, is a common event. Id. The political parties use various formulae to set these numbers. For example, the state Democratic Party begins with a baseline of one delegate and one alternate for each assembly district. It then adds one delegate and one alternate for every 2,500 votes cast on the party's ballot line in the previous gubernatorial election. See Rules of Democratic Party of the State of New York, art. II, § 5. The Republican Party uses a similar formula. See Rules of the New York Republican State Committee, § 18. Although these formulae allot a handful of delegates to each assembly district, the aggregate allotment across an entire judicial district is quite large. In 2004, for example, the parties allotted each judicial district at least 64 total delegates and as many as 248, including alternates.
To appear on the primary ballot, the delegates must circulate designating petitions within the assembly district in which they are running. Within a span of 37 days, each slate of delegates must gather 500 valid signatures from party members residing in that assembly district. N.Y. Elec. L. §§ 6-134(4), -136(2)(i), (3). Each party member may sign only one petition. N.Y. Elec. L. § 6-134(3). Consequently, the number of available signatories shrinks each time a party member signs a designating petition.
Further, because petition signatures are routinely and successfully challenged pursuant to the one-petition signature rule, among others, each delegate slate must realistically gather between 1,000 and 1,500 signatures to gain a primary ballot position. Taking the lower figure of 1,000 signatures per assembly district, in order to run a full complement of delegates, a judicial candidate must gather at least 9,000 signatures (in the judicial district with only nine assembly districts) and as many as 24,000 signatures (in the judicial district with 24 assembly districts). In addition, because each group of delegates runs in a different assembly district, the signatures must be gathered from a variety of particular subdivisions spread throughout the entire judicial district.
At the close of the petitioning period, the State Board of Elections determines which assembly districts present contested delegate races. If only one group of delegates has filed designating petitions in an assembly district, then those delegates are "deemed elected." N.Y. Elec. Law § 6-160(2). Delegates who are "deemed elected" do not appear on the primary ballot. Id.
Once the delegates achieve ballot status in contested races, they may not indicate on the ballot the judicial candidate with whom they are affiliated. Accordingly, in order to run delegate slates in any useful fashion, the judicial candidate must inform the primary electorate in each assembly district of which delegates are pledged to her in that specific locale. In the Second Judicial District, for example, which encompasses Brooklyn and Staten Island, a judicial candidate who ran a slate in each assembly district would have to mount 24 different voter education campaigns. In the Fourth Judicial District, which encompasses roughly one quarter of the State's land, a judicial candidate seeking to run a slate in each assembly district must conduct 10 different voter education campaigns across 11 different counties.
Three current or former judges, including plaintiff Margarita López Torres, averred that the process described above often shuts out candidates lacking either great wealth or the benefit of a political party's county-wide apparatus. According to those judges, the requirements of the process—recruiting large numbers of delegates and alternates, assembling different delegate slates in each assembly district, recruiting petition circulators, collecting several thousand signatures, and conducting a host of localized voter education campaigns—effectively foreclosed their ability to access the primary election phase.
For example, when a former City Court Judge ran for Supreme Court Justice in the Seventh Judicial District, he found that recruiting and running slates of delegates was "not a realistic option." To compete in the primary election, he would have had to "recruit over 55 people to represent the 11 Assembly Districts that were within [his] Judicial District ... each of whom would have had to be willing to contribute significant energy, time, and money." Finding that he would not be able to recruit this many delegate candidates, he pared down the list to the absolute minimum of delegates he thought he needed to elect to be competitive. Even if he were able to recruit enough delegate candidates, the signature requirements were daunting: he would have to recruit "several dozen people to work full-time at gathering" at least 9,000 signatures over the course of 37 days. Although an experienced campaigner who was active in county politics for several years prior to running for the Supreme Court, the lower court judge concluded that "there was simply no way [he] could overcome these organizational and financial burdens." An Albany City Court Judge, also an experienced campaigner, agreed. After attempting to recruit, organize, and run slates of delegates who were independent of the party leadership in the Third Judicial District, he concluded that the process presented "insurmountable structural and practical barriers."
Like those two judges, Civil Court Judge Margarita López Torres found that the various delegate and petitioning requirements created impossibly high entry barriers for candidates lacking institutional support—even for those who possessed significant public support. López Torres was an experienced and successful campaigner who twice won countywide election to the Civil Court in Brooklyn—no simple feat considering that Brooklyn includes several million people of myriad racial, ethnic, religious, and socioeconomic backgrounds. In one recent election for Civil Court Judge, she received over 200,000 votes—more than any Democratic candidate for Supreme Court Justice received in Brooklyn that year.
Yet López Torres, who sought the Democratic nomination for Supreme Court Justice on several occasions, found that the "burdens and barriers to organizing such [delegate] campaigns are truly insurmountable" for those candidates who lack the "county party leaders' backing." Faced with those barriers in her 1998 campaign for Supreme Court Justice, she realized "that [she] had no realistic chance" to fulfill the primary election balloting requirements despite her substantial public support. Accordingly, she "ended [her] bid for the [Democratic] nomination" for Supreme Court Justice.
While these regulations effectively prohibit candidates who lack the support of the party leadership from putting their slates of delegates on the primary election ballot, candidates backed by the local party leadership easily navigate the primary system with the benefit of the party's pre-existing apparatus. Within each county, the party leadership consists of the county leader, who chairs the party's county committee, and a group of assembly district leaders, who serve as members of the party's state committee and may also serve as members of the party's executive county committee.3 Although there is some variation between parties and counties, typically two district leaders—one male, one female—are elected from each assembly district within the county, so the party's network is spread throughout the region. See N.Y. Elec. L. §§ 2-102, -104; Rules of Democratic Party of the State of New York, art. II, §§ 1-2; Rules of the New York Republican State Committee § 1; Rules and Regs. of the Democratic Party of the County of New York, art. II, §§ 1-4; art. III, § 1. We refer to candidates backed by a party's county leaders as "party-backed candidates."
This party leadership recruits judicial delegate candidates, alternate candidates, and petition circulators. The party then simply includes its delegate candidates on the omnibus designating petitions it circulates during every primary election cycle, which may include candidates for the State Legislature, lower courts, and even Congress. In that way, the party leadership ensures that its group of loyal, hand-picked delegate candidates achieves ballot status as a matter of course.
Defendants' own expert witness, New York City Board of Elections Commissioner Douglas Kellner, testified that the primary system is designed to produce this remarkable disparity between "individual" candidates' and party-backed candidates' ability to compete. Kellner certainly is in a position to know. He served as Law Chair of the New York County Democratic Party, has attended "every judicial nominating convention of the Democratic Party in the First Judicial District since 1976," and often operated as the county leader's right-hand man at those conventions. According to Kellner, regardless of the fact that the electoral scheme ostensibly provides for an open primary election, "the idea that an individual candidate would go out and recruit delegate candidates and run delegates pledged to that candidate in the primary is not the system and it twists the design of the system on its head."
The process of running a slate of delegates on the primary election ballot is so beset with obstacles that nearly all candidates recognize the attempt as a fool's errand and do not even try. In the normal course, only one slate of delegates—that supported by local party leadership—even files a designating petition. The uncontested slate is then "deemed elected" by operation of law and does not appear on the primary ballot. This kind of invisible, automatic "election" is the norm rather than the exception. Between the years 1999 and 2002, four of the State's counties—Albany, Nassau, Suffolk, and Tompkins—did not field one single contested delegate race in any of their assembly districts.
In New York City, the situation is only slightly improved. Between 1999 and 2003 in the First, Second, Eleventh, and Twelfth Judicial Districts, only 12.7 percent of delegate elections were contested, and these contested races occurred only in portions of the judicial districts. Accordingly, in 87.3 percent of delegate races over that four-year period, voters did not even see the delegates' names on the ballot, much less have the opportunity to vote them up or down.
B. The Delegate Lobbying Period
Political parties hold their judicial nominating conventions one to two weeks after the judicial delegates are elected. N.Y. Elec. L. §§ 6-124, -126, -158(5). During that interim period, any Supreme Court Justice aspirant, whether or not she sought to have delegates elected at the primary election, theoretically may lobby the delegates for support. However, the evidence established that for two reasons, a candidate who lacks the support of her party's leadership has no actual opportunity to lobby delegates.
First, the time frame for lobbying delegates is unrealistically brief. In contested delegate elections, candidates have only two weeks to lobby at least 64 delegates and as many as 248, depending on the judicial district in which they were running. Where the delegate elections are uncontested, the delegates-elect theoretically may be known as early as July, when the nominating petitions are due. As we will explain, however, at least one candidate who attempted to obtain the names of delegates prior to the primary found her effort thwarted by local party officials.
More importantly, delegates do not exercise their own judgment when deciding which candidate to support. Instead, they endorse the choice of the entity with which they are affiliated and to which they are subject. As set forth above, in the case of almost all delegate slates that achieve ballot access, that entity is the local party leadership. Defense expert Kellner admitted as much: "By definition, the convention system is designed [so] that the political leadership of the party is going to designate the party's candidates. Specifically, judicial delegates are part of the party leadership and responsive to it and make it up, you know, constitute the party leadership."
Henry Berger, the former Chairman of New York's Commission on Judicial Conduct, as well as a former district leader and judicial delegate, agreed that there is a close organizational affiliation between the county leaders, district leaders, and judicial delegates. Berger described that county leaders exert control over their committee members, i.e., the district leaders, who in turn exert control over the delegates: "In my experience, the district leaders almost always follow the wishes of the county party chairperson when it comes to voting for Supreme Court candidates at the convention. In turn, the delegates follow the wishes of the district leaders who have selected them and support the county party chairperson's chosen candidates." Berger testified that this dynamic was so established in the Second and Twelfth Judicial Districts that party officials told him the names of the judicial nominees even before the delegates—who purportedly select the nominees—were even elected.
A professor of sociology from the University of Washington who served as a defense expert described a process in the Eleventh and Twelfth Judicial Districts by which, according to one participant, delegates offer and unanimously confirm nominees though "they don't even know how to pronounce their name[s]." As to the Ninth Judicial District, a longtime judicial delegate averred that because it is "practically impossible" for a candidate to field her own slate of delegates, "county party leaders control the selection of delegates and alternates to the convention." Thus, a candidate's "only path [to the nomination] is to obtain the support of his or her county Party chairman and then seek the blessing of the Westchester County chair."4
The county leaders' organizational affiliation with the judicial delegates is not the only reason they are able to control them so precisely. Also important is the fact that the party leadership possesses the power to doom a delegate's political career if she should reject its choice for Supreme Court Justice. Assemblymember Herman "Denny" Farrell, who is a district leader, chairman of the New York County Democratic Committee, and State Democratic Party chairman, testified of judicial delegates that, "No one wants to get me angry, so they will not go against me until they have nothing to lose."5 Similarly, a defense witness who serves as a Manhattan district leader and often served as a judicial delegate testified that "it makes no sense to alienate the [county leader] over a choice of Supreme Court candidate" because "three years down the line when we were seeking something from the county leader . . . he might remember that I didn't support him at a different time." Asked whether he could remember a single instance of a judicial candidate receiving the nomination over Farrell's objection, the district leader replied, "No. I can't remember it ever happening that way."
Similarly, two judges testified that in the Third and Seventh Judicial Districts, respectively, the party leadership tapped "reliable people" to be judicial delegates, people who would "adhere to the instructions of each county chairman." Otherwise, as the judges averred, they would be "jeopardizing their political future."
The District Court also found that county leaders do not have to issue explicit commands to control the manner in which delegates vote. Defense expert Kellner conceded that at least in some judicial districts, the "leadership of the party . . . hold[s] a meeting before the convention" to "work things out," and then makes nomination "recommendations" to the delegates. Asked whether those "recommendations" were "always followed," Kellner replied, "Generally, yes." Another defense expert admitted that, in the Second Judicial District, "[i]n virtually all cases, the delegates support the candidates supported by their district leader." Similarly, plaintiff and former judicial delegate John W. Carroll testified that delegates are "told" by party leaders "this is the slate we're supporting at the convention" and then "that delegation support[s] that slate," even though the party leadership did not expressly tell the delegation how it should vote.
State Senator Martin Connor's actions at the 2002 Democratic Convention in the Second Judicial District further illustrate the power of implicit dynamics. Connor, who was then the minority leader of the New York State Senate, chaired that convention. He testified that Assemblymember Clarence Norman, Jr., who at the time was the Brooklyn county leader, had decided to confer a nomination on a person Connor believed was a "horrible" choice— unqualified and temperamentally unfit for the bench. However, Connor needed Norman's support in order to fend off a challenge to an incumbent Democratic State Senator who was facing a difficult reelection bid in Brooklyn. Accordingly, instead of voicing his objection, Connor simply convened the convention, stepped down as chair, quickly departed, and allowed the nomination to go forward. "I long since learned the value [in] politics of the unspoken thought," he testified.
C. The Nominating Conventions
The evidence showed that the conventions were perfunctory affairs at which no debate occurred. Minutes from conventions held statewide between 1990 and 2002 show that over 96 percent of nominations went uncontested. The overwhelming majority of nominations were by unanimous voice vote. From the record, it appears that a convention chair never has been challenged successfully.
Not only were conventions devoid of debate and competition, they were fleeting. Over a 12-year span, conventions statewide averaged a mere 55 minutes in length. In 1996, the Second Judicial District's convention lasted 11 minutes but yielded eight nominees.
Given the pro forma nature of conventions, it appears from the record that many delegates do not believe they are worth attending. Even though a delegate's only duty is to attend the convention and vote, and even though delegates publicly run for that privilege just two weeks before the convention, delegate absentee rates are quite high. Over the course of seven years, delegate absentee rates were generally around 25 to 32 percent, but ranged as high as 69 percent—hence the need for so many alternates.
D. The General Election
The final phase of the judicial electoral process is the general election. Empirical evidence showed that because one-party rule is the norm in most judicial districts, the general election is little more than ceremony. Over a 12-year period between 1990 and 2002, almost half of the State's elections for Supreme Court Justice were entirely uncontested, meaning that only one party's candidate appeared on the ballot. In certain judicial districts, contested elections verged on the non-existent. In the Sixth Judicial District, 91 percent of judicial elections were uncontested during the 12-year time span. In the First Judicial District, 85 percent of judicial elections were uncontested. In eight of the State's 12 judicial districts, more than half the elections were uncontested, which left 62 percent of the State's voters with no choice to make on the November ballot.
E. The Candidacy of Margarita López Torres
The experiences of plaintiff López Torres illustrate the manner in which the electoral scheme described above operates to exclude challenger candidates, even those with significant public support. Originally backed by the Kings County Democratic Committee, López Torres won election as a Brooklyn Civil Court Judge in 1992. Soon after her election, two high-ranking committee members directed her to hire a person of their choosing as her law secretary. Given the large caseloads that Civil Court judges must manage, the position of law secretary is a significant one. A law secretary conducts legal research, assists in drafting opinions and orders, schedules cases, and conferences with attorneys.
The two party leaders who prevailed upon López Torres were Norman, who was the committee's chair and thus the county party's leader, and Assemblymember Vito Lopez, who was a district leader and a member of the county's executive committee. Through Vito Lopez's "avid sponsorship," López Torres had secured the county party's support for her successful Civil Court candidacy.
Norman and Lopez expressed their directive through a letter authored by the Secretary of the Kings County Democratic Committee. That letter set forth that "Clarence and Vito" wished the Secretary to "refer this wonderful gentleman to you as your Law Secretary" and that López Torres should "obtain the necessary paperwork for his employment." The resume of the favored appointee was attached.
López Torres interviewed the prospect and contacted his prior employer, a Brooklyn Supreme Court Justice for whom the prospect had served as law secretary. The Justice told López Torres that the law secretary's work was "mediocre" and that "he had spent an enormous amount of time on the phone doing political work." López Torres hired someone else instead.
An "extremely upset" Norman later called López Torres and chastised her for refusing the hire. Norman told her that she "did not `understand the way it works.'" Attorneys such as the one he recommended, he explained, "work hard for the Democratic Party's political clubs to get candidates elected" and the law secretary "job is a way to reward them." He demanded that she fire the person whom she had hired on the merits, and hire a person of the party leadership's choosing. López Torres refused. Some day, Norman warned her, she "would want to become a Supreme Court Justice and . . . the party leaders would not forget this." He told her that "without the `County's' support," her Supreme Court nomination "will not happen."6
Assemblymember Vito Lopez also confronted her. He told her that her refusal to effect the hire was "an embarrassment to him" because he supported her campaign. He demanded that López Torres "make it right" by "hiring the person referred by `County,'" but she again refused. Through an intermediary, he later offered her a chance to redeem herself: if she hired his daughter as her law secretary, he would secure her nomination as the Democratic Party's candidate for Supreme Court Justice. She declined the proposition.
As Norman had anticipated, López Torres eventually did aspire to the State Supreme Court bench. She contacted Norman, who requested that they meet at one of Brooklyn's busiest political salt licks, Junior's Restaurant. When López Torres informed Norman that she desired the party's nomination for a vacant Supreme Court Justice position in the Second Judicial District, he predictably declined to support her because her refusal to hire his favored candidate for law secretary was a "serious breach of protocol."
Nonetheless, she entered her name for consideration at the upcoming judicial convention. In an "urgent phone call," Norman demanded that she withdraw. Her continued candidacy, he claimed, was a political affront to him, and running in an open convention "was not the way it works." She again rebuffed him. At the convention, not a single delegate proposed her nomination.
Undeterred, López Torres sought her party's nomination the following year. The Judicial Screening Committee—a body subject to the control of the county party that ostensibly examines the qualifications of judicial candidates and makes recommendations to the party—interviewed her. However, when she requested the committee's report from Norman and its chairman, Jerome Karp, neither would disclose it. She considered running her own slate of judicial delegates, but realized that such an effort was "impossible" as a practical matter. "There is simply no way I could ever overcome the[] organizational and financial burdens to place delegate candidates on the ballot," she concluded. Without any realistic hope of running her own delegates or receiving Norman's blessing, she withdrew from consideration.
Four years later, López Torres yet again sought her party's nomination. Karp informed her that the screening committee would interview only those candidates that Norman referred; Norman, in turn, refused to make the reference. Over the next few months, López Torres pressed Norman for a referral to the committee, but he repeatedly told her that he opposed her candidacy because she had been "disloyal." Since she was unable to run her own contingent of delegates and the screening committee would not even evaluate her, López Torres' candidacy effectively ended.
That same year, López Torres ran for reelection to the Civil Court bench. The Kings County Democratic Committee—by now overtly hostile to one of its own elected officials—ran a candidate against her in the primary election. Facing the party-backed candidate in an open primary, López Torres prevailed. In the general election, she received over 200,000 votes— more than any of the Democratic candidates for Supreme Court Justice received in Brooklyn that year.
In 2003, the persistent López Torres again sought her party's nomination for Supreme Court Justice. This time, Norman agreed to forward her name to the screening committee. Regardless, in a meeting with López Torres on June 6 he declined to support her because of her past defiance. He also stated that she lacked sufficient support. López Torres pointed out that the prior year she defeated the county party's Civil Court candidate in the primary election and garnered more than 200,000 votes to win the general election. Norman responded that "County" would support only those candidates who supported "County" in turn.
López Torres nonetheless attempted to lobby convention delegates. Beginning in March, she wrote repeatedly to the Kings County Democratic Committee requesting the date, time, and place of the convention; the names of the delegates; and whether she could address the delegates at the convention. In September, the committee's Executive Director, Jeffrey C. Feldman, finally responded. He sneered that "a learned jurist, such as yourself, [should] be well aware that [the delegates] stand for independent election in the Primary Election, yet to be held." No list therefore existed "anywhere in the world."
As to the prospect of addressing the delegates, Feldman wrote: "While I am neither an attorney nor a graduate of law school, I suffer from the innocent belief that the floor of the Convention is open, only, to elected Delegates and their successors. I am not aware of any Convention in my thirty (30) years of attendance, which permitted a non-accredited member to be accorded the privilege of the floor . . . ." He closed his letter by chastising her for the alleged improper use of a fax machine "in violation of Federal Communication Commission regulations." At the convention, two delegates unsuccessfully attempted to nominate López Torres. After that effort failed, the delegates nominated the slate of candidates that Norman had endorsed.
Subsequently, a Brooklyn district leader, who also served as a judicial delegate, penned a letter to the county's other district leaders. He wrote that although López Torres was "highly qualified," he voted against her nomination because she was "an ingrate" who had offended party leadership. Her sin, he explained, was that she "courted Vito Lopez to support her for Civil Court, but then decided she didn't need him anymore and denied his daughter a job."
Years of careful study by a number of groups whose reports were in evidence established that López Torres' experience was no anomalous political mugging. In 2003, New York State's Chief Judge, Judith S. Kaye, created the Commission to Promote Public Confidence in Judicial Elections and charged it with determining ways to improve voter participation in the judicial election process. Chief Judge Kaye named as Chairman John D. Feerick, former Dean of Fordham Law School, and as Commissioners two active state Supreme Court Justices, three active Associate Justices of the Appellate Division, one active state Administrative Judge, and a number of other public servants and private practitioners representing each of the State's judicial districts. After studying the nominating process statewide for more than a year, the Commission concluded that "the uncontested evidence before [it] is that across the state, the system for selecting candidates for the Supreme Court vests almost total control in the hands of local political leaders. . . . And in many parts of the State, being on the dominant party's slate is tantamount to winning the election."
The Commission is hardly the only entity to reach this conclusion—it merely is the latest. Since 1944 New York's judicial nominating system has been described as exclusionary and boss-dominated; reports and newspaper editorials from that time forward have decried an electoral practice "that mocks choice," and criticized a system in which "voters can never know the candidates and have to accept party slates," while the "real choice is . . . left to political bosses . . . who control nominations."
After studying Supreme Court elections for six years, the Fund for Modern Courts concluded that "the selection of Supreme Court justices in New York, is, by and large, a process controlled not by the voters but by political leaders." "[T]he nomination, not the election, is the lynchpin of the judicial selection process," the Fund set forth. "Political leaders, not voters, control judicial conventions and decide who will receive the nomination—and thus who will be the judge." Therefore, "it is not the decision of the voters as to the relative merits of judicial candidates, but the relative strength of the political parties in the judicial districts which determines the outcome of these elections."
Less than a decade later, a Task Force on Judicial Diversity appointed by then-Governor Mario Cuomo agreed that, "In practice it is the political party leaders who have the decisive power to determine who will be nominated. Most often this nomination is tantamount to election." "As we all know," the Governor's task force remarked, "our system is only nominally one of election."
II. Procedural History
In March of 2004, plaintiffs brought suit against the New York State Board of Elections and its commissioners pursuant to 42 U.S.C. § 1983, claiming that New York's electoral scheme violates the First and Fourteenth Amendments to the U.S. Constitution. In particular, plaintiffs claim that the system described above violates the First Amendment's guarantee of political association as to Supreme Court Justice candidates and the voters wishing to support them. Plaintiffs also claim that the scheme violates the Equal Protection Clause of the Fourteenth Amendment because it places unequal burdens on the right to vote.
In their complaint, plaintiffs sought a declaration that the provisions of state law providing for the electoral scheme described above, see N.Y. Elec. Law §§ 6-106, -124, -158, are unconstitutional. They also sought an injunction requiring the State Legislature to enact a new election scheme, and in the meantime requiring the State to conduct direct primary elections for the office of Supreme Court Justice. In June of 2004, plaintiffs formally moved for that relief.
Shortly thereafter, the District Court granted motions to intervene permissively by defendants New York County Democratic Committee, New York Republican State Committee, Associations of New York State Supreme Court Justices in the City and State of New York, and the State Association's President, Justice David Demarest. The District Court also granted a motion to intervene statutorily by Attorney General Eliot Spitzer.
In late 2004 the District Court held a 13-day hearing on plaintiffs' motion for a preliminary injunction, during which it admitted the evidence set forth above. In January of 2006, the Court issued a Memorandum and Order granting plaintiffs' motion on First Amendment grounds without considering plaintiffs' equal protection claim. See López Torres v. N.Y. State Bd. of Elections,
In concluding that plaintiffs demonstrated a clear likelihood of success on their First Amendment claim, the District Court made the factual findings described above. In summary, the Court found that (1) it was "virtually impossible" for a candidate lacking the support of the county party to field slates of delegates, id. at 221; (2) county leaders and district leaders "select the delegates and alternate delegates, who, without consultation or deliberation, rubber stamp the county leaders' choices . . . for Supreme Court Justice," id. at 223; and (3) county leaders and district leaders need not issue express commands to control the manner in which delegates vote, id. at 224. Ultimately, the District Court found that "Democratic and Republican Party leaders select the nominees," id. at 231, and that the general election is a mere "formality" at which the party leaders' selections are confirmed, id. at 230-31.
In light of those findings, the Court concluded that the electoral system effectively excluded candidates from the nominating process and thus severely burdened voters' and candidates' First Amendment right of association. Applying strict scrutiny, the Court next considered the four interests that defendants asserted to justify the burdens, namely, (1) protecting political parties' right of association, (2) promoting geographic diversity, (3) promoting racial diversity, and (4) protecting judicial independence by insulating judges from the fundraising process and from public backlash due to unpopular decisions. Id. at 250-55. The Court assumed that all of these interests were compelling, but concluded that the electoral system was not narrowly tailored to serve any of them. Id.
The Court thus enjoined defendants from enforcing N.Y. Elec. Law §§ 6-106, -124. Id. at 256. Based on a provision of state election law providing for primary elections as the default nominating process, the Court ordered that the State shall conduct primary elections for the office of Supreme Court Justice until the Legislature enacts a new election scheme. Id. at 255-56; see N.Y. Elec. L. § 6-110 ("All other party nominations of candidates for offices to be filled at a general election, except as provided herein, shall be made at the primary election."). The Court declined, however, to order the Legislature to take any action. López Torres,
DISCUSSION
We first address the District Court's ruling on plaintiffs' First Amendment claim, and then the District Court's choice of remedy.
I. The District Court Did Not Exceed Its Allowable Discretion in Concluding that Plaintiffs Demonstrated a Clear Likelihood of Success on Their First Amendment Claim
A. Standard of Review
We review the grant of a preliminary injunction for abuse of discretion, "which usually consists of clearly erroneous findings of fact or the application of an incorrect legal standard." Nicholson v. Scoppetta,
B. Substantive First Amendment Law
Nothing in the Constitution requires a state to provide for the popular election of its judges. Republican Party of Minn. v. White,
The Supreme Court has identified "two different, although overlapping, kinds of rights" that the First Amendment grants: "`the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms.'" Anderson v. Celebrezze,
While the role of voter "is of the most fundamental significance under our constitutional structure," Burdick v. Takushi,
Yet not every regulation that limits the field of candidates is constitutionally suspect, let alone unconstitutional. As noted above, a state possesses significant power to structure its own elections. Moreover, "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Id. at 788,
Instead, we must first ascertain "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate." Id. We must make that assessment not "in isolation, but within the context of the state's overall scheme of election regulations." Lerman v. Bd. of Elections in the City of New York,
If our realistic assessment yields the conclusion that the electoral scheme lightly or even moderately burdens First Amendment rights, we apply a relaxed standard of review, according to which the restrictions generally are valid so long as they further an important state interest. Lerman,
C. The District Court Did Not Find and Apply an Overly Broad First Amendment Right of Association
Defendants' most basic assertion is a unique argument that does not fit easily within the traditional framework set forth above. Instead of focusing on the burdens that this electoral scheme imposes, defendants focus on the affirmative scope of the First Amendment right upon which the District Court based its decision. The District Court erred, defendants maintain, because at bottom its decision rests on an overly broad right of associational freedom, namely, the "right to ... win a major party's nomination."
Defendants attack two aspects of this purported right. They claim that the First Amendment does not apply to New York's nominating process because the State has not provided a direct primary election. They next claim that even if the First Amendment does apply, it guarantees only "access to the nominating phase." Defendants refined their second contention at oral argument by claiming further that the First Amendment prohibits only categorical exclusions, such as those based on race or sex, during the nominating phase.
We disagree. Below we explain why the First Amendment applies to the nominating phase, describe the scope of protection that it guarantees to voters and candidates, and conclude that the District Court applied the proper standard on the facts of this case.
1. The First Amendment's Guarantee of Freedom of Association Applies to New York's Judicial Nominating Process
It is true, as defendants contend, that "the processes by which political parties select their nominees are [not] . . . wholly public affairs that States may regulate freely." Cal. Democratic Party v. Jones,
In Classic, the Supreme Court considered whether Article I, § 2 of the U.S. Constitution secured the right of qualified Louisiana citizens "to vote in the Louisiana [congressional] primary and to have their ballots counted." Classic,
Twelve years later, in Terry v. Adams,
only election that has counted in this Texas county for more than fifty years has been that held by the Jaybirds from which Negroes were excluded. The Democratic primary and the general election have become no more than perfunctory ratifiers of the choice that has already been made in Jaybird elections. . . . The Jaybird primary has become an integral part, indeed the only effective part, of the elective process that determines who shall rule and govern in the county.
Id. at 469-70,
Defendants claim that these cases apply only where the state has provided for a direct primary, whereas New York has opted for an indirect delegate primary election followed by a convention at which those delegates vote on the nomination. This variation in the process of public choice does not release the State from its First Amendment obligations. The animating principle in Classic and Terry is that constitutional protection extends to each State-created or State-endorsed "integral part of the election machinery," not merely to one particular kind of primary election. Classic,
Consistent with that view, we previously held that constitutional protection attaches to all integral phases of the nominating process, regardless of whether the nomination is conferred directly by public ballot or indirectly by the votes of elected party officials. In Seergy v. Kings County Republican County Committee,
In this case, the delegate primary election and subsequent nominating convention are State-created and legally required aspects of the process of public choice in New York. See N.Y. Elec. L. §§ 6-106, -124. Further, as a practical matter, the evidence established that the result of that nominating process profoundly affects the choice at the general election, a fact to which "we cannot close our eyes" because it means that exclusionary nominating-phase regulations may well "operate to deprive the voter of his constitutional right of choice." Classic,
2. The First Amendment Guarantees Voters and Candidates a Realistic Opportunity to Participate in the Nominating Phase Free From Severe and Unnecessary Burdens
Having concluded that New York must afford voters and candidates the right to associate through and in the judicial nominating process, we now examine the scope of that right. Defendants maintain that the First Amendment grants voters and candidates only the right to "access" the nominating process. The term "access" is vague, and the only definition that defendants advance to flesh it out is that a candidate must "have a chance to enter the judicial convention." At oral argument, defendants supplemented this definition by asserting that the Constitution prohibits only those regulations that exclude voters or candidates on the basis of race, sex, or some other categorical demarcation.
As we explain below, the First Amendment affords candidates and voters a realistic opportunity to participate in the nominating process, and to do so free from burdens that are both severe and unnecessary to further a compelling state interest. Further, while categorical race and sex-based exclusions undoubtedly violate the associational rights of voters and candidates, exclusions that result from a complex of otherwise facially valid regulations also may offend the First Amendment.
Although no case has passed on a scheme identical to New York's unique judicial election process, the above principles derive directly from a line of Supreme Court cases limiting a State's power to structure its elections and regulate access to its ballot. In Williams v. Rhodes,
Similarly, in Bullock v. Carter,
Finally, in Anderson v. Celebrezze,
These cases establish that the First Amendment prohibits a state from maintaining an electoral scheme that in practice excludes candidates, and thus voters, from participating in the electoral process, unless the exclusionary regulations are necessary to further a compelling state interest. See also Amer. Party of Tex. v. White,
3. The District Court Recognized and Applied the Appropriate First Amendment Right
The District Court found that plaintiffs have the "right to . . . compete for their major party's nomination" free from burdens that are both severe and unnecessary. Lopez Torres v. N.Y. State Bd. of Elections,
Regardless of semantic nuance, the factual findings on which the District Court based its conclusion illustrate that it applied the correct standard. As we explain in greater detail in the following portions of this opinion, those factual findings are not clearly erroneous. Those findings establish that candidates lacking party leaders' support and the voters who wish to associate with them are practically, if not formally, excluded from the nomination process. The District Court found that candidates "never" satisfy the signature and structural requirements necessary to get "their own slates of delegates on the ballot across the judicial district." Id. at 248. The District Court further found that the possibility of lobbying party-affiliated delegates for support was non-existent because delegates "without consultation or deliberation, rubber stamp the county leaders' choices." Id. at 223.
New York's nominating process, as found by the District Court, does not merely deprive a candidate of a realistic chance to prevail; rather, through the use of overlapping and severe burdens, it deprives a candidate of access altogether. The exclusion of candidates, in turn, severely and unnecessarily "limit[s] the field of candidates from which voters might choose," which is our ultimate and "primary concern" in assessing these restrictions. Anderson,
D. A Delegate-Based Nominating Convention System Is Not Per Se Constitutional
Defendants next contend that pursuant to Amer. Party of Tex. v. White,
The first flaw in defendants' argument is that it is counterfactual. New York's nominating process does not consist only of a convention. It also includes an open, albeit indirect, primary election—an electoral phase that defendants completely ignore. Yet the primary election—at which party-backed delegates are overwhelmingly "deemed elected"—is of central importance to the entire electoral process because it effectively dictates the result of the convention, which in turn greatly affects the result of the general election.
Second, as a legal matter, the subsequent convention does not per se render New York's hybrid scheme constitutional. We repeat that this area of the law admits of no bright-line rules. "Constitutional challenges to specific provisions of a State's election laws . . . cannot be resolved by any `litmus-paper test' that will separate valid from invalid restrictions." Anderson,
Consistent with that general characterization, White gave no categorical blessing to nominating conventions generally, or to the unique hybrid scheme at issue here. In White, the Court considered a First Amendment challenge to Texas election laws that provided four methods of nominating candidates to the general election ballot.
Defendants seek to expand White far beyond its holding by ignoring several crucial points. First, White does not even address the question of whether all convention-based systems are per se constitutional. See id. at 781,
Third, the White Court expressly contemplated that a convention-based system was a valid method to settle "intraparty competition." Id. at 780,
E. The Associational Rights of Political Parties Do Not Justify New York's Nominating Scheme
Defendants next maintain that within the context of New York's nominating procedure, the associational rights of a political party are so strong that they permit it to impose regulations, such as the delegate allocation formulae, that operate to lodge control over the nomination in the hands of party leadership. In support of this contention, defendants rely upon two cases in which courts balanced the associational rights of a party against those of its members, and concluded that the party's rights were weighty enough, and the infringement of their members' rights minor enough, to justify the restrictions the party had imposed. See Bachur v. Democratic National Party,
In Ripon Society v. National Republican Party,
In an opinion joined by only four of the 10 judges sitting in banc, the court noted that the First Amendment protects "a party's choice, as among various ways of governing itself, of the one which seems best calculated to strengthen the party and advance its interests." Id. at 585. The court also recognized that a party member's "right to true participation in the elective process" was "heavily implicated in the nomination process," but ultimately concluded that a party's right to associate was "more in need of protection in this case." Id. at 586. Thus, the court held "that the formula does not violate the Equal Protection Clause." Id. at 588. Accordingly, the Ripon plurality opinion stands for the proposition that a party may structure itself by adopting a delegate allocation formula that dilutes—to some degree—the votes of its rank-and-file members.
In Bachur v. Democratic National Party,
As these cases and others make clear, the First Amendment protects a political party's right to determine the structure and content of its own association. See, e.g., Eu v. San Francisco County Democratic Cent. Comm.,
For two reasons, however, we conclude that these associational rights do not outweigh the associational rights of qualified, party-member voters and candidates. First, the convention system considered in Ripon was, by and large, a private function that directly implicated the party's right to govern its own internal affairs. See Ripon,
Second, the regulations at issue here affect the First Amendment rights of party members much more severely than did those in Ripon and Bachur. In Ripon, the regulations merely diluted the votes of some party members residing in those states that did not reap the awards of the victory bonus system. Here, the evidence showed that the political parties' delegate allocation formulae do much more than merely dilute the proportional efficacy of votes vis a vis assembly districts within a judicial district. Rather, the evidence showed that a network of restrictive regulations effectively excludes qualified candidates and voters from participating in the primary election and subsequent convention, and thus severely limits voter choice at the general election.
Nor did Bachur address a claim of this ilk. In that case, there existed no entry barriers to candidates. Nor did the regulations effectively prevent a party member from voting for their preferred candidate; they merely required that a party member allocate her delegate vote equally on the basis of sex. Id. at 841 ("Barchur does not claim that he was foreclosed from voting for the candidate of his choice. . . .").
In light of the highly public nature of the judicial nominating process and the exclusionary impact of the regulations on the party's own membership, the parties' associational interest is not so strong as to justify the current scheme. Indeed, under these circumstances it is difficult for us to conceive of any party interest that is weighty enough to justify excluding qualified party members from competing for the position of delegate or judicial nominee, or from associating with party-member candidates seeking those offices.
In reaching this conclusion, we note that in all events, political parties remain free to publicly endorse and support a candidate of their own choosing. See Eu,
F. The Existence of an Alternate Means of Access to the General Election Ballot Does Not Automatically Render Constitutional New York's Regulation of the Primary Election Ballot and Nominating Convention
Defendants claim that because a candidate may access the general election ballot as an independent candidate, see N.Y. Elec. Law §§ 6-138, -142(2), or write-in candidate, see N.Y. Elec. Law §§ 7-104(7), -106(8), the provisions regulating access to the primary ballot and nominating convention are "a fortiori" constitutional. (Blue 41-45) However, the Supreme Court already has rejected that argument.
In Bullock v. Carter,
None of the cases that defendants cite contradicts this principle. In LaRouche v. Kezer,
Nor may defendants find support in Burdick v. Takushi,
Likewise, Storer v. Brown,
Finally, Munro v. Socialist Workers Party,
Accordingly, the District Court correctly concluded that the existence of a reasonable means of general election ballot access for independent or write-in candidates does not "a fortiori" render constitutional New York's regulation of access to the primary election ballot and subsequent nominating convention.
G. The Burdens Imposed by N.Y. Elec. L. §§ 6-106, -124 Are Severe
Defendants claim that the District Court incorrectly concluded that New York imposes severe burdens on candidates and voters seeking to participate in the nominating phase of Supreme Court elections. Specifically, defendants challenge three of the District Court's underlying factual findings: (1) challenger candidates never are successful; (2) the petitioning requirements to run a slate of delegates in the primary election are unduly burdensome; and (3) delegates merely do the bidding of party leadership. Defendants claim that each of these three factual findings is subject to de novo review as a mixed question of fact and law, and that even if clear error review applies, the findings are clearly erroneous.
The clear error standard applies both to the District Court's ultimate finding of severity as well as the findings underlying that determination. See Bose Corp. v. Consumers Union of U.S., Inc.,
1. The District Court Properly Assessed the Burdens from the Standpoint of a Reasonably Diligent Candidate Who Lacks the Support of Party Leadership
In assessing the severity of the burdens at issue, the District Court adopted the perspective of "a reasonably diligent candidate who lacks the support of a massive apparatus controlled by the party leadership." Lopez Torres,
First, the District Court's definition is not circular. A challenger candidate simply is one who lacks the party's machinery—not popular support from the party's rank-and-file—and has no other means of making herself available to the voters during integral electoral phases. To illustrate, when Lopez Torres was an incumbent Democratic office holder seeking a Supreme Court nomination, she had significant public support, but could not access the electoral process without possessing either great wealth or a massive preexisting political apparatus.
Second, the District Court's definition derives directly from applicable case law. In Storer, the Supreme Court described "the inevitable question for judgment" as follows: "in the context of California politics, could a reasonably diligent independent candidate be expected to satisfy the signature requirements, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot?"
Defendants point out that Storer concerned a minor-party candidate competing against a major-party candidate, whereas this case concerns intraparty competition. For the purposes of our analysis, we find this distinction immaterial. Minor-party candidates and disfavored major-party candidates face closely similar challenges in this context: both are opposing an entrenched, dominant, and hostile political apparatus. Further, candidates such as Lopez Torres are in an arguably worse position since they lack the support of even a minor party. Given these realities, we previously have recognized that the burdens imposed by New York's petitioning rules are increased where a candidate lacks the support of her party's leadership. See Lerman v. Bd. of Elections in the City of New York,
2. New York's Judicial Election Process Severely Burdens the Associational Rights of Voters and Candidates
Defendants claim that the District Court erred in finding that the structure of the primary election, its petitioning requirements, and the delegate lobbying process severely burden First Amendment associational rights. We disagree.
Defendants first claim that the District Court relied too heavily on Rockefeller v. Powers,
However, the District Court did not err by drawing an analogy to Rockefeller, even though that case is limited, it remains applicable in similar factual circumstances. See, e.g., Lerman,
Conditions similar to those in Lerman and Powers exist here. As in Powers, judicial candidates must gather many signatures across a number of assembly districts. See Powers,
Moreover, as in Lerman and Powers, candidates must gather a surplus of signatures—between 1,000 and 1,500 signatures per assembly district—to beat back challenges, and candidates face a shrinking pool of signatories once party members begin to sign the petitions of candidates backed by the party leadership. Further, as the evidence established, candidates lacking the support of party leadership face a large disparity in resources when competing against those favored by the party leadership.
Judicial candidates also must recruit a large number of individuals to act on their behalf. Candidates must recruit between 32 and 124 individuals to run as delegates, not including alternates. Moreover, they must recruit another group of individuals to circulate petitions in each assembly district. Finally, judicial candidates must educate voters in each assembly district as to the delegates with whom they are affiliated, since that information does not appear on the ballot.
These burdens, taken together, thrust upon judicial candidates "the Procrustean requirement of establishing elaborate primary election machinery." See Jenness v. Fortson,
In further concluding that the process of lobbying delegates imposes severe, exclusionary burdens on candidates and voters, the District Court relied on three findings: (1) county leaders select their party's nominees; (2) delegates merely endorse those choices; and (3) delegates do not require express commands to do so. Defendants attack each of these factual predicates.
Defendants first claim that "overwhelming evidence showed that party leaders throw their support behind a candidate only after it becomes clear that the candidate has achieved widespread support among delegates." Defendants cite testimony to that effect from two of their own witnesses, Kellner and Arthur Schiff. In addition, they note that Farrell described the process as "almost like picking the winner of a horse race after the race." They also claim that Carroll, a former judicial delegate who testified for plaintiffs, admitted that several "insurgent candidates" have won the Democratic nomination in the Second Judicial District, and that district leaders have no control over how delegates associated with his political club cast their votes.
However, the cited portions of Carroll's testimony cannot bear defendants' interpretation. Carroll merely testified that some judges, including former Assemblymember Michael Pesce, came out of a so-called "reform" political club. He never asserted that they overcame the opposition of the party's leadership. Moreover, he testified only that the county party does not control whom his reform club supports—an issue that does not concern the county leader's control over delegates generally. Further, Kellner, Schiff, and Farrell gave testimony contradicting their claim that county leaders merely hop a bandwagon driven by independent-minded delegates.
Defendants ignore that testimony and copious additional evidence supporting the District Court's finding that party leaders designate judicial nominees. That evidence included, inter alia, the following: (1) Kellner's testimony that, "By definition, the convention system is designed so that the political leadership of the party is going to designate the party's candidates"; (2) Farrell's claim that he "surely" can "kill" any nomination and that delegates do not "want[] to get me angry, so they will not go against me until they have nothing to lose"; (3) Schiff's inability to cite one single instance of a candidate receiving a nomination over Farrell's objection; (4) the testimony of Judge López Torres and a former lower court judge that delegates do not consider candidates not supported by the county leaders; (5) Berger's testimony that "district leaders almost always follow the wishes of the county party chairperson when it comes to voting for Supreme Court candidates at the convention," and that in turn "delegates follow the wishes of the district leaders"; (6) Berger's testimony that in the Second and Twelfth Judicial Districts, party officials told him the names of the judicial nominees even before the delegates were elected; and (7) the reports of the Commission to Promote Public Confidence in Judicial Elections, the Fund for Modern Courts, and the Task Force on Judicial Diversity, all of which concluded in various forms "that across the state, the system for selecting candidates for the Supreme Court vests almost total control in the hands of local political leaders." In light of all that evidence, as well as more proof too repetitious to set forth again, we cannot say that the District Court clearly erred in concluding that party leaders designate nominees instead of merely reacting to the choice of delegates.
In similar vein, defendants next claim that the "overwhelming weight of evidence elicited at the hearing was that judicial delegates are independent." In support of this contention, defendants point out that no delegate testified to receiving express instructions on how to vote. However, as the District Court concluded, the evidence established that such instructions were not necessary.
Kellner testified that at least in some judicial districts, the "leadership of the party ... hold[s] a meeting before the convention" to "work things out" and the leadership then makes nomination "recommendations," which, Kellner agreed, "are always followed." Defendants' other expert averred that "[i]n virtually all cases . . . the delegates support the candidates supported by the district leader." Carroll testified that delegates are "told" by party leaders "this is the slate we're supporting at the convention" and then "that delegation support[s] that slate," even though the party leadership did not expressly threaten the delegation or state how it shall vote. As Farrell testified, no one wants to upset the county leader. Even absent an express command, contradicting the party's leadership, a former lower court judge set forth, would jeopardize one's political future. Schiff agreed that "[i]t makes no sense to alienate the [county leader] over a choice of Supreme Court candidate" because "three years down the line when we were seeking something from the county leader ... he might remember that I didn't support him at a different time." Finally, State Senator Connor's actions at the 2002 convention further illustrated that express commands are not needed to control delegates' votes.
Defendants also assert that the District Court ignored evidence that delegate slates are typically run by district leaders, not county leaders, and that the delegate election process is "open and vigorously contested." The District Court did not ignore the role that district leaders play in the nominating process. Instead, as Berger testified, the Court concluded that delegates generally follow the wishes of their local district leader, and district leaders, in turn, generally follow the wishes of their county leader. This dynamic is unsurprising considering that district leaders often are members of a county committee chaired by the county leader. Kellner's testimony supports this view: "By definition, the convention system is designed [so] that the political leadership of the party is going to designate the party's candidates. Specifically, judicial delegates are part of the party leadership and responsive to it and make it up, you know, constitute the party leadership." Further, we find it remarkable that defendants would describe the delegate election process as "open and vigorously contested" when over a four-year period in several judicial districts, almost 90 percent of delegates were "deemed elected" due to lack of opposition, including those within the allegedly competitive First Judicial District.
Defendants point to the testimony of several Supreme Court Justices that the nominating process, as they encountered it, was a fluid political environment in which they successfully lobbied open-minded delegates. Justice Joseph Sise of the Fourth Judicial District, for example, testified that he campaigned extensively, mailed literature, employed radio advertising, and attended "all nine of the 4th Judicial District's county fairs." Through these efforts, he allegedly convinced local residents, district leaders, delegates, and county leaders to support him.
The District Court discredited this version of events. In the Court's view, Sise began as a party favorite—after all, his own brother was the county leader of the judicial district's second largest county. He received the support of another county leader very early in the process, and shortly after that he met with the judicial district's other nine county leaders. When he received the nomination at the convention—unopposed—he thanked the 11 county leaders, among others.
The District Court reached a similar conclusion with respect to the candidacies of five other Justices that defendants offered as products of an open, competitive process. Concerning Justice Phyllis Gangel-Jacob, the Court determined that the Democratic Party in the First Judicial District, and in particular Farrell, supported her candidacy in part because her husband was a district leader. For the same reason, the Court concluded that the county party and Farrell supported the 1999 candidacy of Justice Alice Schlesinger. Likewise, the Court concluded that although Justice Helen Freedman lobbied delegates in a required, "ritualistic" fashion, Farrell and the county party supported her candidacy and secured her nomination. As for Justice Sheila Abdus-Salaam's testimony, the Court concluded that although she believed that she rose to the bench on a "grass roots groundswell," there were insufficient facts in the record to make a determination one way or the other. In any event, she admitted that Farrell ultimately supported her 1993 candidacy. Finally, with respect to the Eighth Judicial District, the Court determined that Justice Robert Lunn obtained the nomination not by appealing to voters and delegates, but rather to the Conservative Party's dominant county leader.7 Nothing in the record leads us to different conclusions.
Finally, defendants urge that because López Torres received 25 votes at the 2002 convention, the District Court erred in finding that delegates are not independent. However, López Torres' testimony established that the county leader prevented her from competing at several conventions, and that despite her widespread popular support, she received virtually no consideration from the delegates in attendance. In light of the evidence recounted above, we cannot say that the District Court clearly erred in determining that judicial delegates merely endorse the choices of party leadership.
All of the evidence presented, and accepted by the District Court, reduces to this bottom line: through a byzantine and onerous network of nominating phase regulations employed in areas of one-party rule, New York has transformed a de jure election into a de facto appointment. "[I]n every practical sense," these regulations preclude all but candidates favored by party leadership "from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how broad or enthusiastic their popular support." Bullock,
H. The District Court Properly Concluded that New York's Electoral Scheme Is Not Narrowly Tailored to Further A Compelling State Interest
Defendants advance six compelling state interests: (1) protecting a political party's associational right to choose its own nominee; (2) preventing party raiding; (3) protecting the associational rights of political parties to create geographically and racially balanced slates of nominees; (4) promoting racial and ethnic diversity on the state bench; (5) promoting geographic diversity on the state bench; and (6) promoting judicial independence by "protecting incumbents and otherwise ameliorating the ill effects of political campaigning on the judiciary."8
With respect to protecting a political party's right to associate with a candidate of its own choosing, we already have rejected the notion that, under New York's constitutional and statutory scheme, a party has the right to exclude its own members from the nominating phase. See Republican Party of Minn. v. White,
Nonetheless, under New York's scheme, parties do retain the right to select a preferred candidate and advocate on her behalf, and we agree that protecting those rights is a compelling state interest. See, e.g., Eu,
The next state interest that defendants proffer—guarding against party raiding9—is compelling in its own right. See Clingman v. Beaver,
Even assuming that party raiding actually is a problem in New York State's judicial elections—and the record does not establish that it is—and assuming further that the current scheme thwarts it, there are less onerous ways to prevent the practice. Defendants have failed to show that the electoral system, in its current form, is necessary to prevent the party raiding they fear. See Bullock,
Defendants claim two types of interests in promoting geographic and racial diversity: a party's associational interest in creating racially and geographically balanced slates of nominees10 and the state's interest in creating a racially and geographically balanced bench. As an initial matter, we note some skepticism as to whether the current scheme effectively serves those interests. A survey of the composition of the state's bench at the time this suit was filed suggests that over the course of 85 years the nominating process has, to put it mildly, failed to fully effectuate the state's goals as to geographic and racial diversity.
At the time plaintiffs filed this litigation, five judicial districts—almost half the state's total—had no minority Justices, even though minorities make up between 7.4 percent and 27 percent of the voting age population in those judicial districts.11 Judicial districts that do have at least one minority Justice nonetheless reflect wide disparities in the number of minority Justices compared to the percentage of voting age population that minorities comprise. For example, in the Tenth Judicial District, minorities comprise 21.8 percent of the voting age population but only 4.3 percent of the Justices; in the Twelfth Judicial District, minorities comprise 82.3 percent of the voting age population but only 41.78 percent of the Justices.
Similar disparities exist as to geography. In the Seventh Judicial District, Monroe County is home to only 59 percent of the voters but boasts 19 out of 22 Justices. In the Second Judicial District, Staten Island has 17 percent of the registered voters but only half that proportion of Justices. Likewise, in the Eighth Judicial District, Erie County is home to 61 percent of registered voters but 89 percent of the Justices.12
These striking statistics are not dispositive of the issue. We cannot be certain precisely how well or poorly the current scheme promotes the State's ends because, given that this system has existed since 1921, we have no sound basis for comparison; it is perhaps possible that, absent the current scheme, the situation, poor as it is now, would be worse. However, the burden of demonstrating that the current scheme reasonably serves the asserted interests falls on defendants, see Lerman v. Bd. of Elections in the City of New York,
Setting these empirical doubts to one side, we rest our conclusion on the ground relied upon by the District Court: less burdensome means exist to promote racial and geographic diversity with respect to slates of nominees and sitting judges. New York could redraw judicial districts to provide for majority-minority districts, for county-specific districts, or for districts that more closely reflect some combination of geographic and racial constituencies. N.Y. Const. art. VI, § 6(b). New York also could require that Justices live in the districts in which they sit, so that the Justices of a judicial district truly represent its racial, ethnic, and geographic constituency.
Finally, with respect to promoting judicial independence, the Supreme Court has recognized only a limited sort of compelling state interest: preventing actual or apparent "bias for or against either party to the proceeding," i.e., actual litigants before the court. Republican Party of Minn. v. White,
Accordingly, for the reasons set forth above, the District Court properly concluded that New York's judicial nominating process is not necessary to further a compelling state interest, and therefore that plaintiffs demonstrated a clear likelihood of success on their First Amendment claim.
II. The District Court Was Not Required to Provide Notice Pursuant to Fed.R.Civ.P. 65(a)(2)
Defendants claim that the District Court "erred by failing to place Defendants on notice that it would effectively grant final relief to Plaintiffs without ordering that the preliminary injunction hearing be consolidated with a full trial on the merits." This argument borders on the frivolous. Rule 65(a)(2)'s notice provision applies only when the District Court orders a full trial on the merits and enters final judgment. See, e.g., Woe v. Cuomo,
Defendants claim that the District Court "effectively" awarded final relief and "effectively" held a full trial on the merits, but these arguments are totally unsubstantiated. We consistently have recognized that a preliminary order may award substantially all the relief sought. See, e.g., Tom Doherty Assoc., Inc. v. Saban Entm't, Inc.,
III. The District Court Did Not Exceed Its Allowable Discretion in Ordering that Judicial Nominations Proceed Via Primary Election Until the Legislature Enacts Corrective Legislation
A. General Remedial Principles
"Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann v. Charlotte-Mecklenburg Bd. of Educ.,
The Supreme Court recently set forth "[t]hree interrelated principles [that] inform our approach to remedies." Ayotte v. Planned Parenthood of N. New England, ___ U.S. ___, ___,
B. The District Court Acted Within Its Discretion in Crafting a Remedy
Four aspects of the District Court's interim remedy are relevant to our review. First, having found New York's judicial nominating process violative of the First Amendment, the District Court fully enjoined the two statutory provisions that provide for that scheme. See N.Y. Elec. L. §§ 6-106, -124. Second, the District Court recognized that the choice of a permanent remedy rests exclusively with the State Legislature. Third, the Court declined to leave the State entirely without a judicial nominating process until the Legislature takes corrective action. Accordingly, relying on New York's default election provision—which provides that "[a]ll other party nominations of candidates for offices to be filled at a general election, except as provided for herein, shall be made at the primary election," N.Y. Elec. L. § 6-110—the Court ordered that judicial nominations shall proceed by primary election until the Legislature enacts corrective legislation. Fourth, the Court stayed all aspects of its remedy until after the 2006 election cycle. Judging by the most conservative time frame, this stay afforded the Legislature almost nine months in which to act before the 2007 election cycle would begin, and roughly 18 months' time in which to act before any judicially-ordered primary might occur.13
Defendants first contend that the District Court exceeded its discretion by enjoining sections 6-106 and 6-124 as unconstitutional on their face instead of as applied. We disagree. While we recognize that facial invalidation is strong medicine, the record evidence establishes, for the purposes of issuing a preliminary injunction, that New York's judicial nominating process excludes not just these plaintiffs, but all candidates lacking party support. In such a case, facial invalidation is proper. See, e.g., Lerman v. Bd. of Elections in the City of New York,
Defendants next contend that instead of enjoining the whole of sections 6-106, 6-124, the District Court should have enjoined those sections only in part. They maintain that the District Court should have more closely tailored its relief to the burdens it identified by, for example, reducing the number of delegates allocated to each judicial district, allowing delegates to run at-large instead of within each assembly district, allowing delegates to pledge their affiliation on the primary ballot, relaxing the petitioning requirements, and extending the time between the primary election and the nominating convention to create a wider lobbying window.
However, defendants fail to recognize that they are inviting the District Court to act as a one-person legislative superchamber—precisely what is forbidden. Courts must refrain "from rewriting state law to conform it to constitutional requirements." Ayotte,
Defendants next contend that the District Court exceeded its discretion by enjoining sections 6-106 and 6-124 statewide, instead of only in those judicial districts as to which there was evidence of the scheme's exclusionary operation. We again disagree. As a practical matter, such an approach is highly undesirable because it would leave judicial nominations in a state of patchwork chaos. Further, there was nothing so localized about the evidence presented at the preliminary injunction hearing to confine its relevance to a particular group of judicial districts, especially given that Chief Judge Kaye's Commission concluded that "the uncontested evidence before [it] is that across the state, the system for selecting candidates for the Supreme Court vests almost total control in the hands of local political leaders." (emphasis added). We see no error in the statewide scope of the District Court's preliminary injunction.
Having rejected defendants' arguments concerning the prohibitory aspect of the District Court's order, we now turn to defendants' claim regarding the affirmative relief that the Court ordered. Defendants assert that the District Court ignored legislative intent when it ordered the State to conduct judicial primary elections until the Legislature enacts corrective legislation. In particular, defendants point to the fact that in 1921 New York replaced judicial primary elections with the current nominating system, thereby clearly evincing a judgment against holding primary elections for the office of Supreme Court Justice. In light of that historical fact, defendants contend that the District Court should have merely enjoined the offending provisions, left it to the Legislature to solve the problem, and not provided any interim, fallback nominating process.
We disagree with defendants for four reasons. First, we see little ultimate difference between what defendants claim the District Court should have done and what it actually did. If the District Court had merely enjoined the current nominating scheme, the default nature of section 6-110 would have resulted in a primary election by operation of law. By recognizing this, the District Court merely clarified the state of affairs that would exist, although less obviously, in any event.
Second, it would have been impractical, if not irresponsible, for the District Court to have left such a gaping hole in the State's electoral scheme. Lemon,
Fourth, the default nature of section 6-110 shows that, as a general matter, the State Legislature is not nearly as opposed to primary elections as defendants contend. In fact, nominations for other judicial offices, such as Civil Court Judge and County Court Judge, are made by primary election. See N.Y. Const. art. VI, § 10; N.Y. Elec. L. §§ 6-110, -168; see generally Ruiz v. Saez,
We come now to the final piece of business before us. At oral argument and in a subsequent submission to the Court, counsel for the State Attorney General and the State Legislature as amicus curiae requested that we further stay the District Court's injunction until after the 2007 election cycle, so that the District Court's remedy would not take effect until December 31, 2007. Until that time, the current nominating scheme would operate unabated.
Apart from the fact that the Attorney General and Legislature should have directed their request to the District Court in the first instance, see Fed. R.App. P. 8(a), it lacks merit. "In this Circuit, four factors are considered before staying the actions of a lower court: (1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer irreparable injury if a stay is issued, (3) whether the movant has demonstrated a substantial possibility, although less than a likelihood of success, on appeal, and (4) the public interests that may be affected." Hirschfeld v. Bd. of Elections,
None of these factors favor defendants. Defendants have failed to show an irreparable injury that they would suffer absent a stay. On the other hand, if the current electoral scheme persists for yet another election cycle, voters and candidates will continue to suffer irreparable constitutional injury. In this opinion we have rejected defendants' claims on appeal. Last, given the constitutional infirmity of New York's judicial nominating process, its continuation cuts sharply against the public interest. See Council of Alternative Political Parties v. Hooks,
Further, as practical matter, there is more than one year's time between the issuance of this opinion and any possible primary election, which gives the Legislature sufficient time to consider and enact a new nominating scheme. Indeed, one house of the Legislature already has passed a new scheme, and did so only weeks after the District Court issued its opinion. In its submission to this Court, the Legislature has pledged to "move as expeditiously as necessary to devise a workable solution." We take it at its word.
CONCLUSION
We hold that the District Court acted within its allowable discretion in finding a clear likelihood of success on plaintiffs' First Amendment claim because (1) the First Amendment affords voters and candidates the right to participate in New York's judicial nominating process free from burdens that are severe and unnecessary to further a compelling state interest; (2) the District Court applied the proper First Amendment standard; (3) a convention-based nominating system is not per se constitutional; (4) the parties' associational rights, by themselves, do not justify the current scheme; (5) a reasonable means of general election ballot access for independent or write-in candidates does not render the nominating process constitutional; (6) the nominating system imposes severe burdens on the associational rights of voters and candidates; and (7) the regulations are not narrowly tailored to serve a compelling state interest. We further hold that the District Court was not required to give notice pursuant to Fed.R.Civ.P. 65(a). Finally, we hold that the District Court acted within its allowable discretion by (1) enjoining defendants from enforcing N.Y. Elec. L. §§ 6-106, -124, and (2) requiring that nominations be settled by primary election until the State Legislature enacts corrective legislation. Accordingly, we AFFIRM the District Court's order dated January 27, 2006.
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Notes
Although defendants do not challenge the associational standing of Common Cause/NY, and appear not to have done so below, we have considered the issuenostra sponte. See, e.g., Muntaqim v. Coombe,
The nominating process described above applies only to political "parties." New York law defines a political "party" as "any political organization which at the last preceding election for governor polled at least fifty thousand votes for its candidate for governor." N.Y. Elec. L. § 1-104(3). State law classifies as "independent bod[ies]" other political entities that do not achieve party status. N.Y. Elec. L. § 1-104(12)
While the State Democratic Party allots each assembly district two slots on the party's state committee,see Rules of the Democratic Party of the State of New York, art. II, § 1(b), (c), the New York County Democratic Party allows for the election of more than two district leaders per assembly district, see Rules and Regs. of the Democratic Party of the County of New York, art. III, § 1. Accordingly, in Manhattan there are more Democratic district leaders than state committee members, and the two positions are not necessarily congruous.
The Ninth Judicial District consists of four small counties with few judicial delegates, and one much larger county, Westchester, with a judicial delegation big enough to effectively control the nominating process
Farrell gave that deposition testimony in connection with another case,France v. Pataki,
Although the Second Judicial District also includes Richmond County, Kings County is several times larger, and thus the Kings County judicial delegation controls the nominating convention
The Court did credit one example of a candidate securing the nomination over the objection of a county leader in the Eighth Judicial District. However, based on news reports, the District Court found that an internal dispute within the Erie County Democratic Party, which eventually led to the ouster of the county leader, caused the event. Further, the Court found that this was the only example in the past 25 years of a candidate securing his party's nomination over the objection of a county leader
For the purposes of our analysis we assume without deciding that promoting geographic diversity is a compelling state interest. Further, like the District Court, we assume that defendants do not claim that the state's interest lies in protecting incumbentsper se, but rather in protecting sitting judges from the appearance of partiality that may attend fundraising and other necessary electoral activities.
Party raiding is "a practice whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party's primary."Tashjian v. Republican Party of Conn.,
Unlike the prevention of party raiding, case law has not recognized a compellingstate interest in guarding a party's ability to create balanced slates. For the purpose of our analysis, we assume that slate-balancing is a compelling state interest.
Although it is not reflected in the record, we note that in 2005 the Ninth Judicial District elected a black Supreme Court Justice. This development does not alter our analysis: only one of the judicial district's 25 justices is a minority,i.e., 4 percent, while minorities make up 27 percent of the district's voting age population.
Moreover, the current system does not even value geographic residency requirements: Justices are not required to live in the judicial district in which they sit. In fact, upstate Justices routinely are assigned to sit in New York City when caseloads require
Counsel for the Attorney General and the State Legislature claimed in oral argument that the election cycle begins in December, fully nine months before the judicial nominating convention, when sitting Justices may begin campaigning by lawSee N.Y. Comp. Codes R. & Regs. tit. 22, §§ 100.0(Q), 100.5. Although nothing in the record reflects that election activities actually begin that early, we afford defendants the benefit of the doubt on this point.