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New York state’s system of nominating Supreme Court candidates at political conventions was challenged yesterday on constitutional grounds in a federal lawsuit. The Eastern District complaint said the system gives political party leaders such a stranglehold over the selection process that it “effectively” deprives New Yorkers of their First Amendment right to vote. Among the challengers are Civil Court Judge Margarita Lopez Torres and former Family Court Judge Philip C. Segal, both of whom claim that their aspirations to win Democratic nominations for the Supreme Court were thwarted by the “byzantine” convention process. The core of the plaintiffs’ claim is that the process of selecting delegates to party judicial district conventions is so onerous that political leaders have exclusive control over nominations. Three times as many signatures are needed to nominate a slate of insurgent convention delegates as are required to run in a countywide primary for Civil Court, the complaint notes. The state Democratic Party chairman, Assemblyman Herman D. Farrell, disputed the notion that it is politically more difficult to mount a Civil Court primary than it is to win a Supreme Court nomination without leadership backing at a convention. In any event, he said, the fact that in New York City 10,000 people are involved in the petition-gathering and convention process indicates that the system is a “broad-based” exercise in “representative democracy.” The lawsuit, Lopez Torres v. New York State Board of Elections, 04-1129, was assigned to Judge John Gleeson, a former federal prosecutor known for having won murder and racketeering convictions in 1992 of the “Teflon Don,” John Gotti. The plaintiffs seek an order requiring the state Legislature to restore to voters the power to elect Supreme Court justices. Should the Legislature fail to act within 90 days, they ask for an order compelling the use of a direct primary system where only a “reasonable” number of petition signatures are required. The suit, prepared by the Brennan Center for Justice at New York University School of Law, comes as New York’s system for selecting Supreme Court justices is under political siege. Bribery charges against two Brooklyn justices � and the guilty plea of one � have produced calls for reform of the convention system. Of the 33 states that elect judges to their courts of general jurisdiction, only New York uses conventions. Calls for change have come from the New York State Bar Association, the Association of the Bar of the City of New York and Brooklyn District Attorney Charles J. Hynes, whose office has empaneled a special grand jury to scrutinize the way Supreme Court justices are chosen in Brooklyn. Chief Judge Judith S. Kaye has convened a blue-ribbon panel to come up with recommendations for improving the way judges are elected in New York, and it is expected to make its recommendations concerning the convention system in May. The city and state bar associations are examining the convention system and will soon release their findings. Both groups have expressed a strong preference for scrapping the elective system altogether in favor of having elected officials appoint judges from a field of candidates offered by a nonpartisan panel. Mr. Hynes, however, has backed replacing the convention system with primary elections where candidates would use public funds to wage campaigns. Mr. Hynes has repeatedly termed “illusory” any claim that voters actually choose judges under the convention system. Yesterday, he said that his office’s ongoing investigation of judicial corruption has yielded “clear evidence” supporting the elimination of the convention system. Jeremy Creelan, the lead counsel for plaintiffs, echoed Mr. Hynes’ characterization of the convention system, calling it a sham that “robs voters of their constitutional right to choose their Supreme Court justices.” Acting as co-counsel on the suit is former city Corporation Counsel Frederick A.O. Schwarz, now a senior partner at Cravath, Swaine & Moore. No Challenges Uncovered The difficulty challengers face in traversing the convention system, according to the complaint, is illustrated by examining the 568 Republican and Democratic candidates nominated for Supreme Court between 1994 and 2002. The plaintiffs report being able to ascertain the circumstances of the nomination of 562 of those candidates and assert that all of them had the backing of party leaders. The complaint painted the Second Judicial District, which covers Brooklyn and Staten Island, as a paradigm of the problems confronting a challenger. A challenger would have to collect 12,000 petition signatures to get 305 convention delegates and alternates onto the ballot. The signatures would have to be spread evenly in the 24 state Assembly Districts contained in the two boroughs. To control the convention, the challenger would have to win at least 80 delegate contests and an equal number of alternate delegate contests. By comparison, the complaint noted, only 7,500 signatures are need to qualify for a ballot line to run for mayor, and 4,000 to run in a countywide Civil Court contest. The complaint further pointed out that, in light of those requirements, delegate challenges are very rare. The plaintiffs contended that since 1999, only 14 percent of the 4,825 convention seats at issue in New York City have been contested. During the same period, they asserted, not a single party-backed judicial delegate in Albany, Erie, Nassau, Suffolk or Tomkins counties has faced a challenge. Likewise, the complaint contended, most Supreme Court candidates, whether Republican or Democratic, face no opposition after they are nominated at their party’s convention. Nearly two-thirds of New York voters find only one set of major party candidates for Supreme Court when they enter the polling booth, the complaint charged. In 1992, the convention system faced a different challenge, when it was claimed that the state’s 12 judicial districts, which at a minimum cover one county, discriminate against black and Latino voters in violation of the federal Voting Rights Act of 1965. In 1996, Southern District Judge John E. Sprizzo, however, dismissed that suit, France v. Pataki, 92-1144, finding that the plaintiffs’ proposed remedy was driven by race and could not survive strict scrutiny as serving a compelling governmental interest.

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