Lopez-Torres, Justice Scalia, and the Situation of Elections

(Full disclosure: in 2006, I was a summer associate at Cravath, Swaine & Moore, LLP, which has been involved in some of the amicus briefing in support of the plaintiffs in this case. In 2008-09, I will clerk for Judge Chester J. Straub of the Second Circuit Court of Appeals, who authored the now-reversed Second Circuit opinion affirming the preliminary injunction.)

On Wednesday, the Supreme Court decided New York Board of Elections v. Lopez-Torres, a case involving the system of selecting New York trial court judges. For over eight decades, Supreme Court (i.e., trial court) judges in New York have been chosen by election. The elections were explicitly partisan: candidates would be nominated by a political party’s elected delegates at a nominating convention, and each party’s nominee would stand in the general election.Candidates not affiliated with a party (as the term is defined in the statutes) could, assuming they meet some basic qualifications, run as independents. All in all, the system seems fairly reasonable. Or maybe it’s only reasonable in theory. According to the Brennan Center for Justice at NYU Law School, which litigated the case, the situation is much different in practice:

In practice, however, New York Supreme Court judges are selected through a de facto appointment system, which is largely controlled by county leaders of the two major political parties. Onerous structural obstacles designed to ensure that county leaders– not voters– select Supreme Court judges have prevented Lopez Torres and other highly qualified judges from becoming justices on the New York Supreme Court. The process thus silences rank-and-file party members and voters, and violates the First and Fourteenth Amendments to the federal Constitution.

In a 77-page opinion, Judge John Gleeson of the Eastern District of New York agreed. In early 2006, he issued a preliminary injunction, enjoining the State of New York from enforcing its Supreme Court election laws as currently in force. Judge Gleeson wrote that the elections were illusory; the party leaders exerted so much control over the process that the state had “effectively transferr[ed] the power to choose to major party leaders.” 411 F. Supp. 2d at 254. Judge Gleeson held that “[a] State may not choose to have judicial elections and then stifle the electoral process . . . , by creating electoral practices that effectively keep candidates out of contention entirely . . . .” Id. As a remedy, Judge Gleeson ordered the state to implement a direct primary election system, as is done in New York for other trial courts.

The Second Circuit affirmed the lower-court decision for substantially the same reasons. Judge Straub wrote:

All of the evidence presented, and accepted by the District Court, reduces to this bottom line: through a Byzantine and onerous network of nominating phase regulations employed in areas of one-party rule, New York has transformed a de jure election into a de facto appointment. “[I]n every practical sense,” these regulations preclude all but candidates favored by party leadership “from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how broad or enthusiastic their popular support.” 462 F.3d at 200-01.

The Supreme Court reversed. Writing for an eight-member majority, Justice Scalia asserted that the political parties’ dominance of the election process posed no constitutional problems. In so doing, Justice Scalia echoed some classic dispositionist themes — themes that, as with most dispositionist narratives, placed an undue emphasis of rational choice while slighting situational factors. For example, Justice Scalia conceded that the candidates favored by the political parties might win election. “But this says nothing more than that the party leadership has more widespread support than a candidate not supported by the leadership.” Slip Op. at 8. In other words, the voters are merely expressing a preference; the leadership’s candidate must win because he appeals to more voters’ preferences. The plaintiffs in Lopez-Torres also complained that the general elections for judges were not competitive: Democratic or Republican party leaders would select the nominee, and since most districts were dominated by one party, the party’s nominee would easily win. Justice Scalia finds no problem with this outcome either. “The reason one-party rule is entrenched may be (and usually 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.” Slip. Op. at 11.

Again, the candidate must be winning because the voters’ preferences align with his views.

What Justice Scalia fails to note is that there are strong psychological factors that weigh in favor of one-party rule. A variety of phenomena, including status quo bias, loss aversion, and the endowment effect — or even just plain old inertia — combine to make voters highly unlikely to unseat an incumbent or to go against the way things have always been. Finally, we humans tend to exhibit the system justification motive in our reasoning — a tendency to view existing social, political, and economic arrangements as fair.

Because of these cognitive biases, it is also highly unlikely that voters, individually or collectively, would express a “rational” “preference” for a given existing arrangement if squarely presented with that possibility. Under the New York system of nominating conventions, however, it is impossible to know.

Unlike the lower courts’ opinions, Justice Scalia’s analysis is blind to the situational factors that bear heavily on the outcome of the nominating conventions. New York’s state law clearly calls for these judgeships to be filled by election; yet, as Judge Straub wrote, the system had morphed into one where party leaders essentially appoint nominees. But how can this be the case if there is a competitive election among the potential nominees? Again, social psychology offers some insight into this question.

First, there is the well-known framing effect. Political endorsements surely matter; that is one reason party leaders in this case (and others, in other cases) make them in the first place. By framing the choices in terms of the “party’s slate” and “all others,” the party leaders exert strong influence over who the delegates ultimately vote for. This phenomenon is well known, and it is the same reason, for example, that boards of directors recommend to their shareholders how they should vote, or that Randy, Paula, and Simon nudge the audience/voters on American Idol. If we as voters were really “rational actors” expressing their “preferences,” then endorsements from party leaders or Simon Cowell should be irrelevant. We are not, and so such endorsements matter a great deal.

Indeed, as other posts on this blog have discussed some of the unseen situational effects on elections. For example, a candidate’s position on a ballot can affect the vote totals. Similarly, the presence of an irrelevant third candidate, who actually does not appeal to the stated preferences of a given voter, might actually change his vote. Across a variety of contexts, the data show ways that people’s choices are shaped by the way they are presented.

The theme running through Justice Scalia’s opinion is one of choice and preferences, that is, the rhetoric of naïve psychology that underlies most market-based arguments. And Justice Scalia draws on the market analogy as well: “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.” Slip Op. at 11. Yet the tension between this passage and others is notable. Justice Scalia repeatedly makes reference to the various limits that the court has imposed on states’ abilities to conduct elections. See, e.g., id. at 5-7 (noting that a political party’s racially discrimination can become state action, that a state has a legitimate interest in prescribing the fairness of a nominating process, that excluding non-party-members from a partisan primary is permissible, and that certain petitioning requirements are constitutional). Thus, even under Justice Scalia’s analysis, the question is not one of “government interference” versus “no interference.” Whether in markets or in elections, “interference” of some kind, as I have argued elsewhere, is inevitable. The more interesting questions revolve around the types of interference their extent. By deferring to the straw men of “government interference” and voters’ “preferences,” Justice Scalia thus avoids the more difficult question of how (if at all) to justify certain types of interference but not others.

Justice Scalia is careful to note, however, that the Supreme Court is by no means requiring New York to stick with the status quo: “If it wishes to return to the primary system that it discarded in 1921, it is free to do so.” Slip Op. at 12. Of course, status quo bias, the endowment effect, &c. make it similarly unlikely that the legislature will radically break from its past practice. Elsewhere, Situationist co-founder Jon Hanson and situationist contributor David Yosifon referred to us humans as “cognitive misers.” And just as humans manage their scare cognitive resources with decisional short-cuts, so too do legislatures manage their very scarce resources with similar shortcuts. Justice Scalia’s comment that the legislature is free to revise its system therefore rings somewhat hollow.

Finally, it is worth noting the important role that processes and procedures play in Justice Scalia’s analysis. Margarita Lopez-Torres, a judicial candidate who enjoyed significant popular support, was essentially blacklisted from the local Democratic Party because she refused to hire an under-qualified man as her law secretary. This refusal was fatal to her aspirations to become a Supreme Court Justice because the recommended candidate had “’work[ed] hard for the Democratic Party’s political clubs to get candidates elected’ and the law secretary ‘job is the way to reward [him].’” 462 F.3d 179. Justice Scalia’s dismisses Lopez-Torres, and people like her, as just a group of people who were crying sour grapes after losing an election. “Here respondents complain not of the state law, but of the voters’ (and their elected delegates’) preference for the choices of the party leadership.” Slip Op. at 8. The message is clear: an election procedure is in place, and it seems reasonably fair (after all, “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 leadership desires.” Id.). Thus, absent a ‘gun to the head’ or some statutory equivalent, there is no constitutional violation. As Situationist contributor Tom Tyler has pointed out, the perceived legitimacy of a given procedure can induce people to accept outcomes they would otherwise find unjust. Justice Scalia’s appeal to the ostensible fairness of the election procedures appears to be an attempt to generate just that kind of acceptance.

The Lopez-Torres case illustrates some of the Constitutional issues that are implicated by New York’s method for selecting Supreme Court justice. However, the fundamental questions raised run much deeper. Unfortunately, Justice Scalia’s analysis in Lopez-Torres suggests that any electoral disputes will be decided with a view to heavily dispositionist theories of human behavior, to the near-exclusion of things like framing, context, and other situational factors. If we are truly committed to democratic politics, then we would do well to re-examine our fundamental (dispositionist) assumptions about ourselves — and to base our analysis of constitutional claims on the most realistic model of the human actor that we have available to us. posts have discussed the insights social psychology can give us into elections in general and this year’s presidential election in particular.