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May 7, 2007
Legal Briefs

New York State Board of Elections v. Torres

by Erik Jaffe

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In this misconceived case pitting political-party populists against political-party centralists, both seeking to have the government impose their preferred candidate-selection method (primary elections versus nominating conventions) on the party as a whole, Cato filed a brief in support of neither party, emphasizing that the private function of political parties selecting and endorsing their standard-bearers for political office should be disentangled from the public function of a state in regulating access to the ballot to bring order to the election process. The brief, written by frequent Cato amicus-brief writer Erik Jaffe, and joined by Reason Foundation and the Center for Competitive Politics, argued that the New York law compelling parties to use nominating conventions to select certain judicial candidates and the lower-court injunction striking that law and requiring the parties to hold primaries instead, both abridged the First Amendment right of freedom of association of the political parties as a whole as well as of their dissident members who preferred primaries. Although the political parties, through their leadership, preferred to hold conventions as required by the New York law, and the brief supported the parties' right to make such a choice for themselves, Cato opposed any government imposition of a specific nominating method upon the parties because the parties should be free to make such choices themselves, and should be accountable for the choices so made. Allowing the parties to hide behind a state compulsion to use conventions – even if they agreed with the state choice of method – insulates them from ordinary internal political responsibility for that choice and blocks other factions within the parties from seeking to change that choice internally. Freedom of association, however, requires that parties be both free and accountable to their members for their choices, without the state placing a thumb on the scale or providing political cover for one or another faction within a political party.

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