Editorial of the New York Sun – April 11, 2016
Here’s our message for those who are threatening a lawsuit over the nominating process in the Republican and Democratic parties. In the Republicans’ case the anger is among the Trump voters who fear their candidate could get to Cleveland with the most delegates and still lose the nomination. In the Democratic camp, the ire is over the so-called “super delegates” on whom Secretary Clinton appears to be depending to clinch the nomination.
Our advice — we’re newspapermen not lawyers — is to read a Supreme Court case known as State Board of Elections v. Lopez Torres. It arose from the frustration in Brooklyn of a reform-minded judge on the Surrogate Court, Margarita Lopez-Torres, who wanted a Democratic a nomination to run for the Supreme Court, but failed in the byzantine procedures that obtain in respect of judgeships within the Democratic Party. Candidates are chosen at a convention by delegates and the Democrat usually wins in November.
After a long quest, Judge Lopez Torres sued on a claim that the system violates what the Second Circuit called “the First Amendment’s guarantee of political association as to Supreme Court Justice candidates and the voters wishing to support them.” Someone should have told the judges who ride the Second Circuit that the First Amendment contains neither the word association nor political. They also claimed New York’s “scheme” (to use the Second Circuit’s word) violates the Fourteenth Amendments equal protection clause.
The Circuit bought into most of this bellyaching. But when it got to the Supreme Court of America, the justices ruled in favor of the New York by a vote neither of five to four nor even six to three nor seven to two nor even eight to one but rather a vote of nine to zero. “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,” Justice Scalia wrote for the Nine.
“Party conventions, with their attendant ‘smoke-filled rooms’ and domination by party leaders, have long been an accepted manner of selecting party candidates,” The Great Scalia wrote. These columns had warned of the likelihood of such a ruling, even though we were very much rooting for the reform camp in Brooklyn in its broader effort to improve the court system at Kings County. The unanimous decision struck us as perfect. “They don’t often pour constitutional cement that thick,” we wrote.
That was in 2008, when one of the most respected Democratic strategists, Donna Brazile, threatened to quit the party if the super-delegates decided the nominee (in the event, President-to-be Obama won the nomination the new fashioned way, in the primaries). It’s a good thing for Donald Trump, Bernie Sanders, and all their disgruntled voters are to take to heart. If things go to an open convention and the party follows procedures, the chances are that no matter how fickle it seems, the Supreme Court is unlikely to offer even sympathy.