NEW YORK STATE BOARD OF ELECTIONS et al. v. LOPEZ TORRES et al.

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Syllabus
NEW YORK STATE BOARD OF ELECTIONS et al. v.
LOPEZ TORRES et al.
certiorari to the united states court of appeals for
the second circuit
No. 06–766. Argued October 3, 2007—Decided January 16, 2008
Under New York’s current Constitution, State Supreme Court Justices are
elected in each of the State’s judicial districts. Since 1921, New York’s
election law has required parties to select their nominees by a conven
tion composed of delegates elected by party members. An individual
running for delegate must submit a 500-signature petition collected
within a specified time. The convention’s nominees appear automati
cally on the general-election ballot, along with any independent candi
dates who meet certain statutory requirements. Respondents filed
suit, seeking, inter alia, a declaration that New York’s convention sys
tem violates the First Amendment rights of challengers running against
candidates favored by party leaders and an injunction mandating a di
rect primary election to select Supreme Court nominees. The Federal
District Court issued a preliminary injunction, pending the enactment
of a new state statutory scheme, and the Second Circuit affirmed.
Held: New York’s system of choosing party nominees for the State Su
preme Court does not violate the First Amendment. Pp. 202–209.
(a) Because a political party has a First Amendment right to limit its
membership as it wishes, and to choose a candidate-selection process
that will in its view produce the nominee who best represents its politi
cal platform, a State’s power to prescribe party use of primaries or con
ventions to select nominees for the general election is not without limits.
California Democratic Party v. Jones, 530 U. S. 567, 577. However,
respondents, who claim their own associational right to join and have
influence in the party, are in no position to rely on the right that the
First Amendment confers on political parties. Pp. 202–204.
(b) Respondents’ contention that New York’s electoral system does
not assure them a fair chance of prevailing in their parties’ candidate
selection process finds no support in this Court’s precedents. Even if
Kusper v. Pontikes, 414 U. S. 51, 57, which acknowledged an individual’s
associational right to vote in a party primary without undue state
imposed impediment, were extended to cover the right to run in a party
primary, the New York law’s signature and deadline requirements are
entirely reasonable. A State may demand a minimum degree of sup

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Syllabus
port for candidate access to a ballot, see Jenness v. Fortson, 403 U. S.
431, 442. P. 204.
(c) Respondents’ real complaint is that the convention process follow
ing the delegate election does not give them a realistic chance to secure
their party’s nomination because the party leadership garners more
votes for its delegate slate and effectively determines the nominees.
This says no more than that the party leadership has more widespread
support than a candidate not supported by the leadership. Cases invali
dating ballot-access requirements have focused on the requirements
themselves, and not on the manner in which political actors function
under those requirements. E. g., Bullock v. Carter, 405 U. S. 134.
Those cases do not establish an individual’s constitutional right to have
a “fair shot” at winning a party’s nomination. Pp. 204–207.
(d) Respondents’ argument that the existence of entrenched “one
party rule” in the State’s general election demands that the First
Amendment be used to impose additional competition in the parties’
nominee-selection process is a novel and implausible reading of the First
Amendment. Pp. 207–209.
462 F. 3d 161, reversed.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Stevens, Souter, Thomas, Ginsburg, Breyer, and Alito, JJ.,
joined. Stevens, J., filed a concurring opinion, in which Souter, J.,
joined, post, p. 209. Kennedy, J., filed an opinion concurring in the judg
ment, in which Breyer, J., joined as to Part II, post, p. 209.
Theodore B. Olson argued the cause for petitioners New
York State Board of Elections et al. With him on the briefs
were Matthew D. McGill, Michael S. Diamant, Todd D. Val
entine, Randy M. Mastro, and Jennifer L. Conn. Andrew J.
Rossman argued the cause for petitioners New York County
Democratic Committee et al. With him on the briefs were
Steven M. Pesner, James P. Chou, James E. d’Auguste,
Vincenzo A. DeLeo, Edward P. Lazarus, Carter G. Phillips,
Thomas C. Goldstein, Joseph L. Forstadt, Ernst H. Rosen
berger, Burton N. Lipshie, David A. Sifre, and Arthur W.
Greig. Andrew M. Cuomo, Attorney General of New York,
Barbara D. Underwood, Solicitor General, Benjamin N. Gut
man, Deputy Solicitor General, and Denise A. Hartman, As

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Opinion of the Court
sistant Solicitor General, filed briefs for petitioner the State
of New York.
Frederick A. O. Schwarz, Jr., argued the cause for re
spondents. With him on the brief were Burt Neuborne,
Deborah Goldberg, Kent A. Yalowitz, and Paul M. Smith.*
Justice Scalia delivered the opinion of the Court.
The State of New York requires that political parties se
lect their nominees for Supreme Court Justice at a conven
tion of delegates chosen by party members in a primary elec
tion. We consider whether this electoral system violates
the First Amendment rights of prospective party candidates.
I
A
The Supreme Court of New York is the State’s trial court
of general jurisdiction, with an Appellate Division that hears
appeals from certain lower courts. See N. Y. Const., Art.
*Briefs of amici curiae urging reversal were filed for the Asian Ameri
can Bar Association of New York by Steven B. Shapiro and Vincent
T. Chang; for the Mid-Manhattan Branch of the NAACP et al. by Gene
C. Schaerr, Steffen N. Johnson, Linda T. Coberly, and Michael J. Fried
man; and for the Republican National Committee by H. Christopher
Bartolomucci.
Briefs of amici curiae urging affirmance were filed for the City of New
York et al. by Preeta D. Bansal, Barry Kamins, Michael A. Cardozo,
Victor A. Kovner, and Kathryn Grant Madigan; for the American Civil
Liberties Union et al. by Arthur N. Eisenberg and Steven R. Shapiro; for
the Asian American Legal Defense and Education Fund et al. by Mariann
Meier Wang; for the Cato Institute et al. by Erik S. Jaffe; for Guy-Uriel E.
Charles et al. by Ellen D. Katz, pro se; for the New York County Lawyers’
Association by Stephanie G. Wheeler and Bradley P. Smith; for the Wash
ington Legal Foundation by Daniel J. Popeo and Richard A. Samp; for
John Dunne by Andrew H. Schapiro; for Charles J. Hynes by Paul A.
Engelmayer; for Edward I. Koch by Mr. Koch, pro se, and Bruce S.
Kaplan; for Thomas Mann et al. by Daniel R. Ortiz, J. Gerald Hebert, and
Paul S. Ryan; and for Former New York State Judges et al. by Holly K.
Kulka and Jonathan R. Dowell.

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VI, §§ 7, 8. Under New York’s current Constitution, the
State is divided into 12 judicial districts, see Art. VI, § 6(a);
N. Y. Jud. Law Ann. § 140 (West 2005), and Supreme Court
Justices are elected to 14-year terms in each such district,
see N. Y. Const., Art. VI, § 6(c). The New York Legislature
has provided for the election of a total of 328 Supreme Court
Justices in this fashion. See N. Y. Jud. Law Ann. § 140–a
(West Supp. 2007).
Over the years, New York has changed the method by
which Supreme Court Justices are selected several times.
Under the New York Constitution of 1821, Art. IV, § 7, all
judicial officers, except Justices of the Peace, were appointed
by the Governor with the consent of the Senate. See 7
Sources and Documents of the U. S. Constitutions 181, 184–
185 (W. Swindler ed. 1978). In 1846, New York amended its
Constitution to require popular election of the Justices of the
Supreme Court (and also the Judges of the New York Court
of Appeals). Id., at 192, 200 (N. Y. Const. of 1846, Art. VI,
§ 12). In the early years under that regime, the State al
lowed political parties to choose their own method of select
ing the judicial candidates who would bear their endorse
ments on the general-election ballot. See, e. g., Report of
Joint Committee of Senate and Assembly of New York, Ap
pointed to Investigate Primary and Election Laws of This
and Other States, S. Doc. No. 26, pp. 195–219 (1910). The
major parties opted for party conventions, the same method
then employed to nominate candidates for other state offices.
Ibid.; see also P. Ray, An Introduction to Political Parties
and Practical Politics 94 (1913).
In 1911, the New York Legislature enacted a law requiring
political parties to select Supreme Court nominees (and most
other nominees who did not run statewide) through direct
primary elections. Act of Oct. 18, 1911, ch. 891, § 45(4), 1911
N. Y. Laws pp. 2657, 2682. The primary system came to
be criticized as a “device capable of astute and successful
manipulation by professionals,” Editorial, The State Conven

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tion, N. Y. Times, May 1, 1917, p. 12, and the Republican
candidate for Governor in 1920 campaigned against it as
“a fraud” that “ ‘offered the opportunity for two things, for
the demagogue and the man with money,’ ” Miller Declares
Primary a Fraud, N. Y. Times, Oct. 23, 1920, p. 4. A law
enacted in 1921 required parties to select their candidates
for the Supreme Court by a convention composed of dele
gates elected by party members. Act of May 2, 1921,
ch. 479, §§ 45(1), 110, 1921 N. Y. Laws pp. 1451, 1454, 1471.
New York retains this system of choosing party nominees
for Supreme Court Justice to this day. Section 6–106 of
New York’s election law sets forth its basic operation: “Party
nominations for the office of justice of the supreme court
shall be made by the judicial district convention.” N. Y.
Elec. Law Ann. § 6–106 (West 2007). A “party” is any politi
cal organization whose candidate for Governor received
50,000 or more votes in the most recent election. § 1–104(3).
In a September “delegate primary,” party members elect
delegates from each of New York’s 150 assembly districts to
attend the party’s judicial convention for the judicial district
in which the assembly district is located. See N. Y. State
Law Ann. § 121 (West 2003); N. Y. Elec. Law Ann. §§ 6–124,
8–100(1)(a) (West 2007). An individual may run for delegate
by submitting to the Board of Elections a designating peti
tion signed by 500 enrolled party members residing in the
assembly district, or by five percent of such enrolled mem
bers, whichever is less. §§ 6–136(2)(i), (3). These signa
tures must be gathered within a 37-day period preceding the
filing deadline, which is approximately two months before
the delegate primary. §§ 6–134(4), 6–158(1). The delegates
elected in these primaries are uncommitted; the primary bal
lot does not specify the judicial nominee whom they will sup
port. § 7–114.
The nominating conventions take place one to two weeks
after the delegate primary. §§ 6–126, 6–158(5). Each of the
12 judicial districts has its own convention to nominate the

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party’s Supreme Court candidate or candidates who will run
at large in that district in the general election. §§ 6–124,
6–156. The general election takes place in November. § 8–
100(1)(c). The nominees from the party conventions appear
automatically on the general-election ballot. § 7–104(5).
They may be joined on the general-election ballot by inde
pendent candidates and candidates of political organizations
that fail to meet the 50,000 vote threshold for “party” status;
these candidates gain access to the ballot by submitting
timely nominating petitions with (depending on the judicial
district) 3,500 or 4,000 signatures from voters in that district
or signatures from five percent of the number of votes cast
for Governor in that district in the prior election, whichever
is less. §§ 6–138, 6–142(2).
B
Respondent Lo´ pez Torres was elected in 1992 to the civil
court for Kings County—a court with more limited jurisdic
tion than the Supreme Court—having gained the nomination
of the Democratic Party through a primary election. She
claims that soon after her election, party leaders began to
demand that she make patronage hires, and that her consist
ent refusal to do so caused the local party to oppose her
unsuccessful candidacy at the Supreme Court nominating
conventions in 1997, 2002, and 2003. The following year,
Lo´ pez Torres—together with other candidates who had
failed to secure the nominations of their parties, voters who
claimed to have supported those candidates, and the New
York branch of a public-interest organization called Common
Cause—brought suit in federal court against the New York
Board of Elections, which is responsible for administering
and enforcing the New York election law. See §§ 3–102, 3–
104. They contended that New York’s election law bur
dened the rights of challengers seeking to run against candi
dates favored by the party leadership, and deprived voters
and candidates of their rights to gain access to the ballot and
to associate in choosing their party’s candidates. As rele

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vant here, they sought a declaration that New York’s conven
tion system for selecting Supreme Court Justices violates
their First Amendment rights, and an injunction mandating
the establishment of a direct primary election to select party
nominees for Supreme Court Justice.
The District Court issued a preliminary injunction grant
ing the relief requested, pending the New York Legislature’s
enactment of a new statutory scheme. 411 F. Supp. 2d 212,
256 (EDNY 2006). A unanimous panel of the United States
Court of Appeals for the Second Circuit affirmed. 462 F. 3d
161 (2006). It held that voters and candidates possess a
First Amendment right to a “realistic opportunity to partici
pate in [a political party’s] nominating process, and to do so
free from burdens that are both severe and unnecessary.”
Id., at 187. New York’s electoral law violated that right be
cause of the quantity of signatures and delegate recruits re
quired to obtain a Supreme Court nomination at a judicial
convention, see id., at 197, and because of the apparent real
ity that party leaders can control delegates, see id., at 198–
200. In the court’s view, because “one-party rule” prevailed
within New York’s judicial districts, a candidate had a consti
tutional right to gain access to the party’s convention, not
withstanding her ability to get on the general-election ballot
by petition signatures. Id., at 193–195, 200. The Second
Circuit’s holding effectively returned New York to the sys
tem of electing Supreme Court Justices that existed before
the 1921 amendments to the election law. We granted cer
tiorari. 549 U. S. 1204 (2007).
II
A
A political party has a First Amendment right to limit its
membership as it wishes, and to choose a candidate-selection
process that will in its view produce the nominee who best
represents its political platform. Democratic Party of
United States v. Wisconsin ex rel. La Follette, 450 U. S. 107,

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122 (1981); California Democratic Party v. Jones, 530 U. S.
567, 574–575 (2000). These rights are circumscribed, how
ever, when the State gives the party a role in the election
process—as New York has done here by giving certain par
ties the right to have their candidates appear with party en
dorsement on the general-election ballot. Then, for exam
ple, the party’s racially discriminatory action may become
state action that violates the Fifteenth Amendment. See
id., at 573. And then also the State acquires a legitimate
governmental interest in ensuring the fairness of the party’s
nominating process, enabling it to prescribe what that proc
ess must be. Id., at 572–573. We have, for example, con
sidered it to be “too plain for argument” that a State may
prescribe party use of primaries or conventions to select
nominees who appear on the general-election ballot. Amer
ican Party of Tex. v. White, 415 U. S. 767, 781 (1974). That
prescriptive power is not without limits. In Jones, for ex
ample, we invalidated on First Amendment grounds Califor
nia’s blanket primary, reasoning that it permitted non
party-members to determine the candidate bearing the
party’s standard in the general election. 530 U. S., at 577.
See also Eu v. San Francisco County Democratic Central
Comm., 489 U. S. 214, 224 (1989); Tashjian v. Republican
Party of Conn., 479 U. S. 208, 214–217 (1986).
In the present case, however, the party’s associational
rights are at issue (if at all) only as a shield and not as a
sword. Respondents are in no position to rely on the right
that the First Amendment confers on political parties to
structure their internal party processes and to select the
candidate of the party’s choosing. Indeed, both the Republi
can and Democratic state parties have intervened from the
very early stages of this litigation to defend New York’s elec
toral law. The weapon wielded by these plaintiffs is their
own claimed associational right not only to join, but to have
a certain degree of influence in, the party. They contend
that New York’s electoral system does not go far enough—

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does not go as far as the Constitution demands—in ensuring
that they will have a fair chance of prevailing in their parties’
candidate-selection process.
This contention finds no support in our precedents. We
have indeed acknowledged an individual’s associational right
to vote in a party primary without undue state-imposed im
pediment. In Kusper v. Pontikes, 414 U. S. 51, 57 (1973), we
invalidated an Illinois law that required a voter wishing to
change his party registration so as to vote in the primary of
a different party to do so almost two full years before the
primary date. But Kusper does not cast doubt on all state
imposed limitations upon primary voting. In Rosario v.
Rockefeller, 410 U. S. 752 (1973), we upheld a New York
State requirement that a voter have enrolled in the party of
his choice at least 30 days before the previous general elec
tion in order to vote in the next party primary. In any
event, respondents do not claim that they have been ex
cluded from voting in the primary. Moreover, even if we
extended Kusper to cover not only the right to vote in the
party primary but also the right to run, the requirements of
the New York law (a 500-signature petition collected during
a 37-day window in advance of the primary) are entirely rea
sonable. Just as States may require persons to demonstrate
“a significant modicum of support” before allowing them ac
cess to the general-election ballot, lest it become unmanage
able, Jenness v. Fortson, 403 U. S. 431, 442 (1971), they may
similarly demand a minimum degree of support for candidate
access to a primary ballot. The signature requirement here
is far from excessive. See, e. g., Norman v. Reed, 502 U. S.
279, 295 (1992) (approving requirement of 25,000 signatures,
or approximately two percent of the electorate); White,
supra, at 783 (approving requirement of one percent of the
vote cast for Governor in the preceding general election,
which was about 22,000 signatures).
Respondents’ real complaint is not that they cannot vote
in the election for delegates, nor even that they cannot run

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in that election, but that the convention process that follows
the delegate election does not give them a realistic chance
to secure the party’s nomination. The party leadership,
they say, inevitably garners more votes for its slate of dele
gates (delegates uncommitted to any judicial nominee) than
the unsupported candidate can amass for himself. And thus
the leadership effectively determines the nominees. But
this says nothing more than that the party leadership has
more widespread support than a candidate not supported by
the leadership. No New York law compels election of the
leadership’s slate—or, for that matter, compels the delegates
elected on the leadership’s slate to vote the way the leader
ship desires. And no state law prohibits an unsupported
candidate from attending the convention and seeking to per
suade the delegates to support her. Our cases invalidating
ballot-access requirements have focused on the requirements
themselves, and not on the manner in which political actors
function under those requirements. See, e. g., Bullock v.
Carter, 405 U. S. 134 (1972) (Texas statute required exorbi
tant filing fees); Williams v. Rhodes, 393 U. S. 23 (1968) (Ohio
statute required, inter alia, excessive number of petition sig
natures); Anderson v. Celebrezze, 460 U. S. 780 (1983) (Ohio
statute established unreasonably early filing deadline).
Here respondents complain not of the state law, but of the
voters’ (and their elected delegates’) preference for the
choices of the party leadership.
To be sure, we have, as described above, permitted States
to set their faces against “party bosses” by requiring party
candidate selection through processes more favorable to in
surgents, such as primaries. But to say that the State can
require this is a far cry from saying that the Constitution
demands it. None of our cases establishes an individual’s
constitutional right to have a “fair shot” at winning the par
ty’s nomination. And with good reason. What constitutes
a “fair shot” is a reasonable enough question for legislative
judgment, which we will accept so long as it does not too

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much infringe upon the party’s associational rights. But it
is hardly a manageable constitutional question for judges—
especially for judges in our legal system, where traditional
electoral practice gives no hint of even the existence, much
less the content, of a constitutional requirement for a “fair
shot” at party nomination. Party conventions, with their at
tendant “smoke-filled rooms” and domination by party lead
ers, have long been an accepted manner of selecting party
candidates. “National party conventions prior to 1972 were
generally under the control of state party leaders” who
determined the votes of state delegates. American Presi
dential Elections: Process, Policy, and Political Change 14
(H. Schantz ed. 1996). Selection by convention has never
been thought unconstitutional, even when the delegates were
not selected by primary but by party caucuses. See ibid.
The Second Circuit’s judgment finesses the difficulty of
saying how much of a shot is a “fair shot” by simply mandat
ing a primary until the New York Legislature acts. This
was, according to the Second Circuit, the New York election
law’s default manner of party-candidate selection for offices
whose manner of selection is not otherwise prescribed.
Petitioners question the propriety of this mandate, but we
need not pass upon that here. Even conceding its propriety,
there is good reason to believe that the elected members of
the New York Legislature remain opposed to the primary,
for the same reasons their predecessors abolished it 86 years
ago: because it leaves judicial selection to voters uninformed
about judicial qualifications, and places a high premium upon
the ability to raise money. Should the New York Legisla
ture persist in that view, and adopt something different from
a primary and closer to the system that the Second Circuit
invalidated, the question whether that provides enough of a
“fair shot” would be presented. We are not inclined to open
up this new and excitingly unpredictable theater of election
jurisprudence. Selection by convention has been a tradi
tional means of choosing party nominees. While a State

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may determine it is not desirable and replace it, it is not
unconstitutional.
B
Respondents put forward, as a special factor which gives
them a First Amendment right to revision of party processes
in the present case, the assertion that party loyalty in New
York’s judicial districts renders the general-election ballot
“uncompetitive.” They argue that the existence of en
trenched “one-party rule” demands that the First Amend
ment be used to impose additional competition in the
nominee-selection process of the parties. (The asserted
“one-party rule,” we may observe, is that of the Democrats
in some judicial districts, and of the Republicans in others.
See 411 F. Supp. 2d, at 230.) This is a novel and implausible
reading of the First Amendment.
To begin with, it is hard to understand how the competi
tiveness of the general election has anything to do with re
spondents’ associational rights in the party’s selection proc
ess. It makes no difference to the person who associates
with a party and seeks its nomination whether the party is
a contender in the general election, an underdog, or the fa
vorite. Competitiveness may be of interest to the voters in
the general election, and to the candidates who choose to run
against the dominant party. But we have held that those
interests are well enough protected so long as all candidates
have an adequate opportunity to appear on the general
election ballot. In Jenness we upheld a petition-signature
requirement for inclusion on the general-election ballot of
five percent of the eligible voters, see 403 U. S., at 442, and
in Munro v. Socialist Workers Party, 479 U. S. 189, 199
(1986), we upheld a petition-signature requirement of one
percent of the vote in the State’s primary. New York’s
general-election balloting procedures for Supreme Court
Justice easily pass muster under this standard. Candidates
who fail to obtain a major party’s nomination via convention
can still get on the general-election ballot for the judicial

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district by providing the requisite number of signatures of
voters resident in the district. N. Y. Elec. Law Ann. § 6–
142(2). To our knowledge, outside of the Fourteenth and
Fifteenth Amendment contexts, see Jones, 530 U. S., at 573,
no court has ever made “one-party entrenchment” a basis for
interfering with the candidate-selection processes of a party.
(Of course, the lack of one-party entrenchment will not cause
free access to the general-election ballot to validate an other
wise unconstitutional restriction upon participation in a par
ty’s nominating process. See Bullock, 405 U. S., at 146–147.)
The reason one-party rule is entrenched may be (and usu
ally is) that voters approve of the positions and candidates
that the party regularly puts forward. It is no function of
the First Amendment to require revision of those positions
or candidates. The States can, within limits (that is, short
of violating the parties’ freedom of association), discourage
party monopoly—for example, by refusing to show party en
dorsement on the election ballot. But the Constitution pro
vides no authority for federal courts to prescribe such a
course. The First Amendment creates an open marketplace
where ideas, most especially political ideas, may compete
without government interference. See Abrams v. United
States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). It
does not call on the federal courts to manage the market by
preventing too many buyers from settling upon a single
product.
Limiting respondents’ court-mandated “fair shot at party
endorsement” to situations of one-party entrenchment
merely multiplies the impracticable lines courts would be
called upon to draw. It would add to those alluded to earlier
the line at which mere party popularity turns into “one
party dominance.” In the case of New York’s election sys
tem for Supreme Court Justices, that line would have to be
drawn separately for each of the 12 judicial districts—and in
those districts that are “competitive” the current system

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Kennedy, J., concurring in judgment
would presumably remain valid. But why limit the remedy
to one-party dominance? Does not the dominance of two
parties similarly stifle competing opinions? Once again, we
decline to enter the morass.
* * *
New York State has thrice (in 1846, 1911, and 1921) dis
played a willingness to reconsider its method of selecting
Supreme Court Justices. If it wishes to return to the pri
mary system that it discarded in 1921, it is free to do so; but
the First Amendment does not compel that. We reverse the
Second Circuit’s contrary judgment.
It is so ordered.
Justice Stevens, with whom Justice Souter joins,
concurring.
While I join Justice Scalia’s cogent resolution of the con
stitutional issues raised by this case, I think it appropriate
to emphasize the distinction between constitutionality and
wise policy. Our holding with respect to the former should
not be misread as endorsement of the electoral system under
review, or disagreement with the findings of the District
Court that describe glaring deficiencies in that system and
even lend support to the broader proposition that the very
practice of electing judges is unwise. But as I recall my
esteemed former colleague, Thurgood Marshall, remarking
on numerous occasions: “The Constitution does not prohibit
legislatures from enacting stupid laws.”
Justice Kennedy, with whom Justice Breyer joins as
to Part II, concurring in the judgment.
The Court’s analysis, in my view, is correct in important
respects; but my own understanding of the controlling prin
ciples counsels concurrence in the judgment and the expres
sion of these additional observations.

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210 NEW YORK STATE BD. OF ELECTIONS v.
LOPEZ TORRES
Kennedy, J., concurring in judgment
I
When a state-mandated primary is used to select delegates
to conventions or nominees for office, the State is bound not
to design its ballot or election processes in ways that impose
severe burdens on First Amendment rights of expression
and political participation. See Kusper v. Pontikes, 414
U. S. 51, 57–58 (1973); see also California Democratic Party
v. Jones, 530 U. S. 567, 581–582 (2000); cf. Lubin v. Panish,
415 U. S. 709, 716 (1974); Bullock v. Carter, 405 U. S. 134, 144
(1972); Gray v. Sanders, 372 U. S. 368, 380 (1963). Respond
ents’ objection to New York’s scheme of nomination by con
vention is that it is difficult for those who lack party connec
tions or party backing to be chosen as a delegate or to
become a nominee for office. Were the state-mandated
and-designed nominating convention the sole means to attain
access to the general election ballot there would be consider
able force, in my view, to respondents’ contention that the
First Amendment prohibits the State from requiring a dele
gate selection mechanism with the rigidities and difficulties
attendant upon this one. The system then would be subject
to scrutiny from the standpoint of a “reasonably diligent in
dependent candidate,” Storer v. Brown, 415 U. S. 724, 742
(1974). The Second Circuit took this approach. 462 F. 3d
161, 196 (2006).
As the Court is careful to note, however, New York has a
second mechanism for placement on the final election ballot.
Ante, at 201. One who seeks to be a justice of the New
York Supreme Court may qualify by a petition process. The
petition must be signed by the lesser of (1) 5 percent of the
number of votes last cast for Governor in the judicial district
or (2) either 3,500 or 4,000 voters (depending on the district).
This requirement has not been shown to be an unreasonable
one, a point respondents appear to concede. True, the can
didate who gains ballot access by petition does not have a
party designation; but the candidate is still considered by
the voters.

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Kennedy, J., concurring in judgment
The petition alternative changes the analysis. Cf. Munro
v. Socialist Workers Party, 479 U. S. 189, 199 (1986) (“It can
hardly be said that Washington’s voters are denied freedom
of association because they must channel their expressive ac
tivity into a campaign at the primary as opposed to the gen
eral election”).
This is not to say an alternative route to the general elec
tion exempts the delegate primary/nominating convention
from all scrutiny. For instance, the Court in Bullock, after
determining that Texas’ primary election filing fees were so
“patently exclusionary” on the basis of wealth as to invoke
strict scrutiny under the Equal Protection Clause, rejected
the argument that candidate access to the general election
without a fee saved the statute. 405 U. S., at 143–144, 146–
147 (“[W]e can hardly accept as reasonable an alternative
that requires candidates and voters to abandon their party
affiliations in order to avoid the burdens of the filing fees”).
But there is a dynamic relationship between, in this case, the
convention system and the petition process; higher burdens
at one stage are mitigated by lower burdens at the other.
See Burdick v. Takushi, 504 U. S. 428, 448 (1992) (Kennedy,
J., dissenting) (“The liberality of a State’s ballot access laws
is one determinant of the extent of the burden imposed by
the write-in ban; it is not, though, an automatic excuse for
forbidding all write-in voting”); Persily, Candidates v. Par
ties: Constitutional Constraints on Primary Ballot Access
Laws, 89 Geo. L. J. 2181, 2214–2216 (2001). And, though the
point does not apply here, there are certain injuries (as in
Bullock) that are so severe they are unconstitutional no mat
ter how minor the burdens at the other stage. As the Court
recognized in Kusper, moreover, there is an individual right
to associate with the political party of one’s choice and to
have a voice in the selection of that party’s candidate for
public office. See 414 U. S., at 58. On the particular facts
and circumstances of this case, then, I reach the same conclu
sion the Court does.

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212 NEW YORK STATE BD. OF ELECTIONS v.
LOPEZ TORRES
Kennedy, J., concurring in judgment
II
It is understandable that the Court refrains from com
menting upon the use of elections to select the judges of the
State’s courts of general jurisdiction, for New York has the
authority to make that decision. This closing observation,
however, seems to be in order.
When one considers that elections require candidates to
conduct campaigns and to raise funds in a system designed
to allow for competition among interest groups and political
parties, the persisting question is whether that process is
consistent with the perception and the reality of judicial in
dependence and judicial excellence. The rule of law, which
is a foundation of freedom, presupposes a functioning judi
ciary respected for its independence, its professional attain
ments, and the absolute probity of its judges. And it may
seem difficult to reconcile these aspirations with elections.
Still, though the Framers did not provide for elections of
federal judges, most States have made the opposite choice,
at least to some extent. In light of this longstanding prac
tice and tradition in the States, the appropriate practical re
sponse is not to reject judicial elections outright but to find
ways to use elections to select judges with the highest quali
fications. A judicial election system presents the opportu
nity, indeed the civic obligation, for voters and the commu
nity as a whole to become engaged in the legal process.
Judicial elections, if fair and open, could be an essential
forum for society to discuss and define the attributes of ju
dicial excellence and to find ways to discern those qualities
in the candidates. The organized bar, the legal academy,
public advocacy groups, a principled press, and all the other
components of functioning democracy must engage in this
process.
Even in flawed election systems there emerge brave and
honorable judges who exemplify the law’s ideals. But it is
unfair to them and to the concept of judicial independence if

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Kennedy, J., concurring in judgment
the State is indifferent to a selection process open to manipu
lation, criticism, and serious abuse.
Rule of law is secured only by the principled exercise of
political will. If New York statutes for nominating and elec
ting judges do not produce both the perception and the real
ity of a system committed to the highest ideals of the law,
they ought to be changed and to be changed now. But, as
the Court today holds, and for further reasons given in this
separate opinion, the present suit does not permit us to in
voke the Constitution in order to intervene.
III
With these observations, I concur in the judgment of the
Court.