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Stephen Gottlieb: A View Of The Ballot

I got on line the other night to see what to expect at the voting booth today. We have all been hearing about the primary races for Governor and Lieutenant Governor, although polls tell us that lots of people haven’t heard of Zephyr Teachout and Tim Wu, or if they’ve heard the names don’t know why. That’s clearly not true of WAMC listeners. But what else is on the ballot? Actually plenty.

The League of Women Voters website provides helpful information; it’s available to the public and I’m a member – they don’t restrict membership by gender. So I typed in my address and got three races. The third was for Judge on the Surrogate’s Court. That’s important – Surrogate Judges decide on will contests and other important matters. But there was nothing about the Supreme Court.

Plainly in Albany County there is a contest for the Supreme Court. Literature has been in the mail from both candidates, one of whom, Meg Walsh, is a neighbor I’ve known and respected for years. You won’t find Meg or her opponent listed on the ballot, however. What you will find are lists of delegates to the Democratic Judicial Nominating Convention. The delegates won’t be listed by the candidates they support. You’ll have to find the delegates you want to vote for by remembering or bringing in a list and finding them on the ballot.

That method of selecting our judges was found unconstitutional by the federal Court of Appeals several years ago.[i] It insulates the political leadership and – by statute – provides little opportunity for challenges. The US Supreme Court doesn’t see problems with rigging elections, so they reversed the Court of Appeals and announced that parties can make the nominations.[ii] Yes parties can, but the Court didn’t mention that party voters have no hand in deciding how their parties are organized – the insulation is courtesy of the NY State Legislature.

But two issues go beyond this election, much as it would be good to have Meg on the NY State Supreme Court and voting for her delegates would be a step toward more responsible parties.

First it ought to be possible for voters to see the ballot before they reach the polls. If you know of a place to find advance copies of this year’s ballot, please let me know. At the last moment you may find the ballot in your morning paper. The absence of the Supreme Court and party committee races make clear that descriptions of the ballot online are incomplete. Is anything else in the shadows? If it’s online it certainly isn’t easy to find. Some states provide voters with a voters’ book, listing the offices and some information about each candidate at least in the general election. At the very least we ought to be able to find who and what is on the ballot.

Second, about the only appointment power the parties still have is for judges. But given the way it’s organized, it’s almost impossible to hold the parties responsible. That’s courtesy of the NY Legislature and a Bush-whacking by the John Roberts Supreme Court. And that makes just three things we need to change – the legislature, the Court and the parties.


[i] Lopez Torres v. N.Y. State Bd. of Elections, 462 F.3d 161 (2d Cir. 2006).

[ii] N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008).

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.


The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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