New York State Bd. of Elections v. López Torres

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

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
convention composed of delegates elected by party members. An in
dividual running for delegate must submit a 500-signature petition
collected within a specified time. The convention’s nominees appear
automatically on the general-election ballot, along with any inde
pendent candidates who meet certain statutory requirements. Re
spondents filed suit, seeking, inter alia, a declaration that New
York’s convention system violates the First Amendment rights of
challengers running against candidates favored by party leaders and
an injunction mandating a direct primary election to select Supreme
Court nominees. The Federal District Court issued a preliminary in
junction, 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. 5–12.
(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 political platform, a State’s power to prescribe party use of prima
ries or conventions 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. 5–7.
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LOPEZ TORRES

Syllabus

(b) Respondents’ contention that New York’s electoral system does
not assure them a fair chance of prevailing in their parties’ candi
date-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 mini
mum degree of support for candidate access to a ballot, see Jenness v.
Fortson, 403 U. S. 431, 442. P. 7.
(c) Respondents’ real complaint is that the convention process fol
lowing 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 nomi
nees. This says no more than that the party leadership has more
widespread support than a candidate not supported by the leader
ship. Cases invalidating ballot-access requirements have focused on
the requirements themselves, and not on the manner in which politi
cal actors function under those requirements. E.g., Bullock v. Carter,
405 U. S. 134. Those cases do not establish an individual’s constitu
tional right to have a “fair shot” at winning a party’s nomination.
Pp. 7–10.
(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. 10–12.
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. KENNEDY, J., filed an opinion concurring in the judgment, in
which BREYER, J., joined as to Part II.
 Cite as: 552 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–766
_________________

NEW YORK STATE BOARD OF ELECTIONS,

ET AL., PETITIONERS v. MARGARITA

LOPEZ TORRES ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[January 16, 2008]

JUSTICE SCALIA delivered the opinion of the Court.
The State of New York requires that political parties
select their nominees for Supreme Court Justice at a
convention of delegates chosen by party members in a
primary election. 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. VI, §§7, 8. Under New York’s current Consti­
tution, 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).
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Opinion of the Court

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 ap­
pointed by the Governor with the consent of the Senate.
See 7 Sources and Documents of the U. S. Constitutions
181, 184 (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 re­
gime, the State allowed political parties to choose their
own method of selecting the judicial candidates who would
bear their endorsements on the general-election ballot.
See, e.g., Report of Joint Committee of Senate and Assem­
bly of New York, Appointed 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 conven­
tions, the same method then employed to nominate candi­
dates 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 requir­
ing 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 2657, 2682. The primary
system came to be criticized as a “device capable of astute
and successful manipulation by professionals,” Editorial,
The State Convention, N. Y. Times, May 1, 1917, p. 12,
and the Republican candidate for Governor in 1920 cam­
paigned against it as “a fraud” that “offered the opportu­
nity 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
 Cite as: 552 U. S. ____ (2008) 3

Opinion of the Court

convention composed of delegates elected by party mem­
bers. Act of May 2, 1921, ch. 479, §§45(1), 110, 1921 N. Y.
Laws 1451, 1454, 1471.
New York retains this system of choosing party nomi­
nees 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
political organization whose candidate for Governor re­
ceived 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 petition signed by 500
enrolled party members residing in the assembly district,
or by five percent of such enrolled members, whichever is
less. §§6–136(2)(i), (3). These signatures must be gath­
ered 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 ballot does
not specify the judicial nominee whom they will support.
§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 party’s Supreme Court candidate or candi­
dates 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
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Opinion of the Court

ballot. §7–104(5). They may be joined on the general-
election ballot by independent 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 López Torres was elected in 1992 to the civil
court for Kings County—a court with more limited juris­
diction 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 consistent refusal to do so caused the local
party to oppose her unsuccessful candidacy at the Su­
preme Court nominating conventions in 1997, 2002, and
2003. The following year, López 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 con­
tended that New York’s election law burdened the rights
of challengers seeking to run against candidates favored
by the party leadership, and deprived voters and candi­
dates of their rights to gain access to the ballot and to
associate in choosing their party’s candidates. As relevant
here, they sought a declaration that New York’s conven­
tion system for selecting Supreme Court Justices violates
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Opinion of the Court

their First Amendment rights, and an injunction mandat­
ing the establishment of a direct primary election to select
party nominees for Supreme Court Justice.
The District Court issued a preliminary injunction
granting the relief requested, pending the New York Leg­
islature’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 participate in [a political party’s] nominat­
ing process, and to do so free from burdens that are both
severe and unnecessary.” Id., at 187. New York’s elec­
toral law violated that right because of the quantity of
signatures and delegate recruits required to obtain a
Supreme Court nomination at a judicial convention, see
id., at 197, and because of the apparent reality 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 constitu­
tional 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 system of electing Supreme Court Justices that existed
before the 1921 amendments to the election law. We
granted certiorari. 549 U. S. ___ (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, 122 (1981); California Democratic Party v.
6 NEW YORK STATE BD. OF ELECTIONS v.

LOPEZ TORRES

Opinion of the Court

Jones, 530 U. S. 567, 574–575 (2000). These rights are
circumscribed, however, when the State gives the party a
role in the election process—as New York has done here
by giving certain parties the right to have their candidates
appear with party endorsement on the general-election
ballot. Then, for example, the party’s racially discrimina­
tory 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 as­
suring the fairness of the party’s nominating process,
enabling it to prescribe what that process must be. Id., at
572–573. We have, for example, considered 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. American Party of Tex. v.
White, 415 U. S. 767, 781 (1974). That prescriptive power
is not without limits. In Jones, for example, we invali­
dated on First Amendment grounds California’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 Repub­
lican and Democratic state parties have intervened from
the very early stages of this litigation to defend New
York’s electoral law. The weapon wielded by these plain­
tiffs 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
 Cite as: 552 U. S. ____ (2008) 7

Opinion of the Court

far enough—does not go as far as the Constitution de­
mands—in assuring 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 impediment. 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 vot­
ing. 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 election in order to vote in the next
party primary. In any event, respondents do not claim
that they have been excluded 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 reasonable. Just as States may
require persons to demonstrate “a significant modicum of
support” before allowing them access to the general-
election ballot, lest it become unmanageable, 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
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LOPEZ TORRES

Opinion of the Court

in the election for delegates, nor even that they cannot run
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 lead­
ership, they say, inevitably garners more votes for its slate
of delegates (delegates uncommitted to any judicial nomi­
nee) than the unsupported candidate can amass for him­
self. 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 com­
pels election of the leadership’s slate—or, for that matter,
compels the delegates elected on the leadership’s slate to
vote the way the leadership desires. And no state law
prohibits an unsupported candidate from attending the
convention and seeking to persuade the delegates to sup­
port her. Our cases invalidating ballot-access require­
ments 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 exorbitant filing fees);
Williams v. Rhodes, 393 U. S. 23 (1968) (Ohio statute
required, inter alia, excessive number of petition signa­
tures); 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 requir­
ing party-candidate selection through processes more
favorable to insurgents, 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 party’s nomination. And with good reason.
 Cite as: 552 U. S. ____ (2008) 9

Opinion of the Court

What constitutes a “fair shot” is a reasonable enough
question for legislative judgment, which we will accept so
long as it does not too much infringe upon the party’s
associational rights. But it is hardly a manageable consti­
tutional 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 nomi­
nation. Party conventions, with their attendant “smoke­
filled rooms” and domination by party leaders, 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 Presidential Elec­
tions: Process, Policy, and Political Change 14 (H. Schantz
ed. 1996). Selection by convention has never been thought
unconstitutional, even when the delegates were not se­
lected 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 man­
dating 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 prede­
cessors abolished it 86 years ago: because it leaves judicial
selection to voters uninformed about judicial qualifica­
tions, and places a high premium upon the ability to raise
money. Should the New York Legislature 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”
10 NEW YORK STATE BD. OF ELECTIONS v.

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Opinion of the Court

would be presented. We are not inclined to open up this
new and excitingly unpredictable theater of election juris­
prudence. Selection by convention has been a traditional
means of choosing party nominees. While a State 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 proc­
esses 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 exis­
tence of entrenched “one-party rule” demands that the
First Amendment be used to impose additional competi­
tion 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 Republi­
cans 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
respondents’ associational rights in the party’s selection
process. It makes no difference to the person who associ­
ates with a party and seeks its nomination whether the
party is a contender in the general election, an underdog,
or the favorite. 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 gen­
eral-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
 Cite as: 552 U. S. ____ (2008) 11

Opinion of the Court

requirement of one percent of the vote in the State’s pri­
mary. 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 district by providing the
requisite number of signatures of voters resident in the
district. N. Y. Elec. Law Ann. §6–142(2). To our knowl­
edge, 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
otherwise unconstitutional restriction upon participation
in a party’s nominating process. See Bullock, 405 U. S., at
146–147.)
The reason one-party rule is entrenched may be (and
usually is) that voters approve of the positions and candi­
dates that the party regularly puts forward. It is no func­
tion 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 associa­
tion), discourage party monopoly—for example, by refus­
ing to show party endorsement on the election ballot. But
the Constitution provides 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 entrench­
ment merely multiplies the impracticable lines courts
12 NEW YORK STATE BD. OF ELECTIONS v.

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Opinion of the Court

would be called upon to draw. It would add to those al­
luded to earlier the line at which mere party popularity
turns into “one-party dominance.” In the case of New
York’s election system 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 “competi­
tive” the current system 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)
displayed a willingness to reconsider its method of select­
ing Supreme Court Justices. If it wishes to return to the
primary 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.
 Cite as: 552 U. S. ____ (2008) 1

STEVENS, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–766
_________________

NEW YORK STATE BOARD OF ELECTIONS,

ET AL., PETITIONERS v. MARGARITA

LOPEZ TORRES ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[January 16, 2008]

JUSTICE STEVENS, with whom JUSTICE SOUTER joins,
concurring.
While I join JUSTICE SCALIA’S cogent resolution of the
constitutional issues raised by this case, I think it appro
priate to emphasize the distinction between constitutional
ity and wise policy. Our holding with respect to the for
mer 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 Mar
shall, remarking on numerous occasions: “The Constitu
tion does not prohibit legislatures from enacting stupid
laws.”
 Cite as: 552 U. S. ____ (2008) 1

KENNEDY, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–766
_________________

NEW YORK STATE BOARD OF ELECTIONS,

ET AL., PETITIONERS v. MARGARITA

LOPEZ TORRES ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[January 16, 2008]

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
principles counsels concurrence in the judgment and the
expression of these additional observations.
I
When a state-mandated primary is used to select dele
gates 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). Respondents’ objection to New
York’s scheme of nomination by convention is that it is
difficult for those who lack party connections or party
backing to be chosen as a delegate or to become a nominee
for office. Were the state-mandated-and-designed nomi
nating convention the sole means to attain access to the
general election ballot there would be considerable force,
2 NEW YORK STATE BD. OF ELECTIONS v.

LOPEZ TORRES

KENNEDY, J., concurring in judgment

in my view, to respondents’ contention that the First
Amendment prohibits the State from requiring a delegate
selection mechanism with the rigidities and difficulties
attendant upon this one. The system then would be sub
ject to scrutiny from the standpoint of a “reasonably dili
gent independent 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 4. One who seeks to be a Justice of the
New York Supreme Court may qualify by a petition proc
ess. 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 respon
dents appear to concede. True, the candidate who gains
ballot access by petition does not have a party designation;
but the candidate is still considered by the voters.
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 activity into a campaign at the primary as
opposed to the general election”).
This is not to say an alternative route to the general
election exempts the delegate primary/nominating conven
tion 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 reason
able an alternative that requires candidates and voters to
 Cite as: 552 U. S. ____ (2008) 3

KENNEDY, J., concurring in judgment

abandon their party affiliations in order to avoid the bur
dens of the filing fees”). But there is a dynamic relation
ship 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. Parties: Constitu
tional 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 matter how
minor the burdens at the other stage. As the Court recog
nized 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
conclusion the Court does.
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 observa
tion, however, seems to be in order.
When one considers that elections require candidates to
conduct campaigns and to raise funds in a system de
signed 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 independence and judicial excellence. The rule of
law, which is a foundation of freedom, presupposes a
functioning judiciary respected for its independence, its
4 NEW YORK STATE BD. OF ELECTIONS v.

LOPEZ TORRES

KENNEDY, J., concurring in judgment

professional attainments, and the absolute probity of its
judges. And it may seem difficult to reconcile these aspi
rations 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
response is not to reject judicial elections outright but to
find ways to use elections to select judges with the highest
qualifications. A judicial election system presents the
opportunity, indeed the civic obligation, for voters and the
community 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 at
tributes of judicial 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 the State is indifferent to a selection process open to
manipulation, criticism, and serious abuse.
Rule of law is secured only by the principled exercise of
political will. If New York statutes for nominating and
electing judges do not produce both the perception and the
reality of a system committed to the highest ideals of the
law, they ought to be changed and 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 invoke the Constitution in order to intervene.
III
With these observations, I concur in the judgment of the
Court.