A bruising political battle is moving from downtown Brooklyn to the nation’s capital. To the surprise of many observers, the Supreme Court of the United States has agreed to hear the case of Margarita Lopez Torres et al against New York State Board of Elections et al. Its decision will determine whether the present system of electing New York State Supreme Court justices is unconstitutional.

The case began in 2004, when Lopez Torres, then a Brooklyn Civil Court judge, claimed she had been blocked from becoming a state Supreme Court justice because of her independence and refusal to be influenced by local politicians. After several tries at moving up the judicial ladder, Lopez Torres concluded that she had been intentionally shut out and that, under the system for electing Supreme Court justices in New York state, she would never be able to get her name on the ballot before the general voting public.

In a challenge to the nomination process, her lawyers have successfully argued in two federal courtsthat the present method of selecting candidates is unconstitutional. They maintain that it violates the U.S. Constitution by having delegates to a convention – and not voters in a primary – determine who gets on the general election ballot. Although Lopez Torres has since been elected a judge of the Kings County (Brooklyn) Surrogate Court, and although the convention system is unique to New York, the battle has continued, reaching the highest court in the nation where arguments will be heard next week.

Becoming a State Supreme Court Justice

New York State Supreme Court justices, who preside over trials and have general jurisdiction, are nominated by judicial delegates. These are registered members of a particular party who are elected to attend a judicial convention by fellow party members in each Assembly district. At the convention, names of candidates seeking to fill available seats on the court are placed in nomination. Any New York judge or lawyer who has been a member of the bar for at least 10 years can be nominated. But Lopez Torres argues that no hopeful who lacks the support of local politicians and political clubs can organize sufficient delegates to become the designated candidate. She makes this argument even though she was nominated at one convention and received a large number of votes, but not enough to secure a place on the November ballot.

Winning the nomination is usually tantamount to winning the election. Opposing parties rarely present challenges. The candidate who appears on the Election Day ballot in New York City is usually the Democrat, who may or may not be endorsed by other parties but who almost always wins either way. Other parties may field their own candidates, but with little expectation of winning.

Opening the Primaries

Essentially, the Lopez Torres argument is that she or anyone not favored by the party in power cannot gain access to the November general election ballot. To remedy this, her lawsuit contends that New York State Supreme Court justices should be elected through a primary process. This is the way voters choose New York City Civil Court judges and other elected officials.

New York used a primary system to elect state judges at the beginning of the 20th century, but critics considered it cumbersome, expensive and a possible threat to judicial independence. The legislature replaced it with the present system.

Like other elected officials, lower court judges run for office by getting enough registered party voters in their district to sign their nominating petitions. Those who qualify appear on the ballot to face a possible primary and then, of course, the general election. Again, any New York City resident who is a registered voter and who has been admitted to the bar for at least 10 years may circulate petitions and launch a primary campaign. While difficult, this route is sometimes successful, whether for an open seat or to replace an incumbent judge.

The system Lopez Torres would like to see for Supreme Court justices was on view in three contests for lower court judges in Brooklyn last week. The races, for a seat on the Surrogate Court and two on Civil Court, were hotly contested, and in the Surrogate Court race, the candidate with the backing of the party leadership lost.

On to Washington

Those opposing the Lopez Torres position argue that it is up to the legislative branch to determine a method of electing statewide judges and that the present system is the one enacted by our legislature. Also, some of the legal briefs raise the issue that a delegate convention is not only constitutional but shares many characteristics with the American system of electing presidents. Depending up on the state, electors may be nominated at conventions and then cast votes through the Electoral College, which actually elects the president.

Dozens of lawyers from around the country, various bar associations and good government groups are weighing in with legal briefs on both sides of the Lopez Torres litigation. As the state’s top lawyer, the New York State attorney general is defending the present system.

The stakes are enormous. What the justices decide in Washington could have a staggering impact on New York electoral and judicial politics. If, after hearing oral arguments, a majority agree with the Federal District Court and the U.S. Court of Appeals that the system is constitutionally flawed, then it would have to be dismantled and the state legislature would have to enact a new method. The justices are unlikely to dictate what the alternative should be, although the mid-level federal court called for the primary model. On the other hand, the justices may find that the existing system should be upheld and that New York can continue with the judicial conventions it has held for the last 86 years.

They could do neither. Instead, the Supreme Court may decide that the case warrants further proceedings, evidence and a trial and return the issue to the federal court in Brooklyn. That could start the litigation process all over and keep the existing system in place – at least temporarily.

Lopez Torres is represented by the Brennan Center for Justice at NYU School of Law and Arnold & Porter. When the court hears the case, Frederic A.O. Schwarz Jr. will argue for them.

On the other side, Andrew Rossman of Akin Gump Strauss Hauer & Feld will appear for the New York County Democratic Committee, and counsel for the New York Republican State Committee is Carter G. Phillips of Sidley Austin LLP. Both party committees also have counsel from firms in New York, Washington and Los Angeles. Lead counsel for the Associations of New York State Supreme Court Justices is Joseph Forstadt of Stroock & Stroock & Lavan. To present its case, the State of New York has retained Ted Olson, who argued the Bush side of Bush v Gore and was recently thought to be a leading contender for U.S. attorney general.

Watch for next week's report -- direct from Washington.

Emily Jane Goodman is a New York State Supreme Court Justice