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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion

On Lopez Torres and Line Drawing

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January 22, 2008

Chris ElmendorfChris Elmendorf
U.C. Davis School of Law


Last week’s decision in New York Board of Elections v. Lopez Torres seems at first glance to be of little practical importance for the field of election law. The Supreme Court unanimously reversed a Second Circuit opinion striking down New York’s peculiar, outsider-thwarting system for nominating major party candidates for trial court judgeships. The State’s hybrid primary-convention system for selecting nominees is unlike any other in the nation, and one might suppose that the implications of Justice Scalia’s brief opinion for the Court would be confined by the factual oddity of the case.

That supposition is mistaken. Although written in an uncharacteristically nonchalant and discursive style, Scalia’s opinion advances three important and quite general ideas:

1. In judging the burden of hybrid primary-convention nomination systems on voter/candidate associational interests, courts should focus their attention on the electoral stage of the proceedings (i.e., the electoral contest to serve as delegate), and disregard the operation of the convention itself. See slip op. at 7.

This is what I have termed the “Election Is An Election” model for applying voting rights and ballot access precepts to candidate nomination proceedings. (See Christopher S. Elmendorf, New York State Bd. of Election v. Torres, Is the Right to Vote a Constitutional Constraint on Partisan Nominating Conventions?, 6 ELECTION L.J. 399, 403-04 (2007).) The model holds that the principles developed in voting rights and ballot access cases apply with full force to primary elections, but have no applicability whatever if the state opt for a convention or other non-electoral methods for winnowing the field of candidates prior to the general election.

2. In assessing the constitutionality of outsider-thwarting state laws governing major-party nominations, nothing turns on the competitiveness of the ensuing general election—so long as independent and third-party candidates enjoy reasonable means of access to the general election ballot. See slip op. at 10-12.

This I have termed the “Safety Valve” model. (See Elemendorf, supra, at 405-06.) A court committed to this model need not concern itself with the fairness of major-party nomination proceedings so long as independents and third parties have adequate access to the general election ballot. This model could support a major step back from judicial review of voting rights and ballot access claims in the context of primary elections. But Justice Scalia’s resort to the Election Is An Election model elsewhere in his opinion makes that eventuality seem unlikely.

3. Even if the Constitution were best understood to guarantee insurgent candidates a “fair shot” in the non-electoral stages of major party nomination proceedings, the courts could not enforce this right, because “[w]hat constitutes a ‘fair shot’ . . . is hardly a manageable constitutional question for judges.” Slip op. at 9.

Scalia’s third point is the most puzzling, at least at first glance. The “fair shot” standard proposed by the lawyers for candidate (and Judge) Lopez Torres is a restatement of the Supreme Court’s longstanding standard for judging ballot access barriers at the general election stage. As the Court put it in Storer v. Brown, 415 U.S. 724 (1974), the “question for judgment” in constitutional challenges to signature requirements for independent candidates is whether “a reasonably diligent independent candidate [can] be expected to satisfy the signature requirements, or [whether] . . . unaffiliated candidate[s] will succeed in getting on the ballot” “only rarely.” Id. at 742.

Does Scalia’s “manageability” attack on the proposed “fair shot” standard mean that Storer itself is now in doubt vis-à-vis barriers to the general election ballot? I should think not, given that Scalia relies on independents and third parties having “adequate” access to the general election ballot in dismissing the respondents’ competition-based arguments (see #2, above). But if the fair-shot standard is unworkable for gauging the openness of convention-based systems for nominating candidates, what makes it viable for judging the many and potentially synergistic barriers to independent candidates that a state may create with petition requirements for ballot access?

I have argued elsewhere that Storer establishes both a vaguely worded “performance standard” for ballot-access regimes and a set of clear cut, readily verified “structural presumptions” that judges may deploy in the absence of solid empirical evidence concerning compliance with the performance standard. (See Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. PA. L. REV. 313, 345-53 (2007).) Signature requirements of 5% or less of the “available pool” of prospective signatories are presumptively permissible; requirements approaching 10% are presumptively “severe” and trigger elevated scrutiny. Perhaps it is these rather arbitrary judge-made proxies for the openness of a ballot access regime that make the Storer standard tolerably “manageable.”

If so, this is of considerable moment for lawyers and judges struggling to apply the Storer-Burdick framework for judicial review of electoral mechanics in new contexts (think voter ID). It will not do simply to call upon the courts to balance voter and state interests and draw hard lines—the tack pursued during oral argument by the petitioner’s lawyer in Crawford v. Marion County Election Board, the pending case about Indiana’s photo ID requirement for voting. Rather, it is incumbent upon plaintiffs to present and defend reasonably mechanical rules that would serve, at least presumptively, to separate “severe” from “lesser” incursions on constitutionally protected interests. Plaintiffs who cannot articulate such a standard and anchor their claim to it now stand to lose on political-question-like grounds.