Yesterday's Second Circuit oral argument in the NY Judicial Elections (Lopez Torres v. NY State Board of Elections) case was remarkable and may be of interest to list members.  Though scheduled for 40 minutes, argument lasted for two intensely substantive hours. The case had produced a total of 14 amicus briefs for the parties, as well as one amicus brief issued by the New York Legislature in response to a request from the circuit.  

The panel, consisting of Judges Chester Straub, Sonia Sotomayor, and Peter Hall, aggressively questioned lawyers on both sides of the case, including questioning the defendants for nearly 90 minutes of the 2 hours.  In the words of today's New York Law Journal, "[a]t issue is a singular ruling from [U.S. District] Judge John Gleeson, in which he found that New York's complex convention system was a sham that left political leaders entirely in control of who becomes a judicial candidate."  The panel probed the constitutionality of that unique system, with Judge Straub posing the question of whether, "if you find a way to nullify the right of the electorate to participate in any way, that is not a class to be protected?"  

The panel also addressed Judge Gleeson's temporary (and presently stayed) remedy of judicial primaries in the absence of legislative action to cure the constitutional infirmities.  Defendants contended that if the circuit upholds the finding of unconstitutionality, it should remand to the district court and ask Judge Gleeson to consider changing individual components of the convention system, while the Plaintiffs (represented by the Brennan Center), argued that primaries were the statutory default in the absence of the provisions deemed unconstitutional and that Judge Gleeson's remedy was an act of judicial restraint that avoided judicial "micro-management" of the complex inter-connected convention scheme.

Today's NY Daily News editorial on the argument is available at 
http://www.nydailynews.com/news/ideas_opinions/story/424545p-358191c.html 

All briefs as well as Judge Gleeson's decision are available at http://www.brennancenter.org/programs/dem_fc_lit_lopez-torres.html 

__________________
James Sample
Associate Counsel
Brennan Center for Justice
212.992.8648 (direct)
james.sample@nyu.edu 
www.brennancenter.org