Full opinion text
MEMORANDUM AND ORDER INCLUDING PRELIMINARY INJUNCTION GLEESON, District Judge: The plaintiffs in this case claim that New York State’s electoral process for the office of Supreme Court Justice violates the First and Fourteenth Amendments to the United States Constitution. Specifically, they claim that the system both deprives voters of the right to choose their parties’ judicial candidates and imposes insurmountable burdens on challenger candidates who seek a major party nomination without the support of local Democratic or Republican Party leaders. The plaintiffs seek a declaration that New York’s judicial convention system is unconstitutional and a preliminary injunction directing the New York State legislature to create a new system. In the meantime, and for as long as the legislature fails to do so, the plaintiffs request that this Court direct that Supreme Court Justices be nominated through direct primary elections. In late 2004, a hearing was held on the plaintiffs’ motion for a preliminary injunction. The hearing spanned 13 days; 24 witnesses testified, and more than 10,000 pages of documentary exhibits were received into evidence. Oral argument was held on November 18, 2004. The parties have submitted 494 pages of proposed fact-findings and legal conclusions. As discussed below, the plaintiffs have demonstrated convincingly that local major party leaders—not the voters or the delegates to the judicial nominating conventions—control who becomes a Supreme Court Justice and when. The highly unusual processes by which that extremely important office is filled perpetuate that control, and deprive the voters of any meaningful role. The result is an opaque, undemocratic selection procedure that violates the rights of the voters and the rights of candidates who lack the backing of the local party leaders. Accordingly, the motion for a preliminary injunction is granted. Specifically, the defendants are enjoined from enforcing New York Election Law § 6-106, and from using the existing procedures set forth in New York Election Law § 6-124 for major party nominations for the office of Supreme Court Justice. Until the New York legislature enacts another electoral scheme, such nominations shall be made by primary election. The petitioning requirements that will attend those primary elections shall be set forth in a subsequent order, after the parties have had the opportunity to be heard, afforded by a schedule set forth below. FACTUAL BACKGROUND A. The Uniqueness of New York’s Electoral Process for the Office of Supreme Court Justice The Supreme Court of the State of New York is not the state’s highest court. Rather, it is the trial court of general jurisdiction. See N.Y. Const. Art. VI, § 7. Justices of the Supreme Court hear civil and criminal cases across the state. They also serve, when appointed to do so by the Governor, in the four Appellate Divisions, which hear appeals as of right from trial court decisions and from administrative agencies. N.Y. Const. Art. VI, § 4. The Constitution of the State of New York provides, in Article VI, § 6(c), that “[t]he justices of the supreme court shall be chosen by the electors of the judicial district in which they are to serve.” The same provision fixes the term of office at 14 years. The United States Constitution does not prescribe any particular method by which the states must choose their judges. The states have established a wide array of methods, including appointment, nonpartisan election, partisan election, convention, retention election and various combinations of those methods. New York is one of 89 states that elect some or all of their judges of trial courts of general jurisdiction. Eighteen of those states select all of their general jurisdiction trial judges through nonpartisan elections that involve an initial election on primary day and then, if necessary, a run-off between the top candidates on the day of the general election. No party labels appear with the candidates’ names on the ballots. Nine of the 39 states, including New York, select all of their general jurisdiction trial judges through partisan elections. Six of the 39 states use an initial merit appointment systern, followed by a retention election at or near the end of the judge’s term. In a retention election, the judge faces no opponent; rather, the voters determine whether she should be retained for an additional term. Finally, of the 39 states that elect their judges, six employ various combinations of the three selection methods already identified. New York is unique in its use of a convention system to select nominees for election to its trial court of general jurisdiction (ie., the Supreme Court). All major party nominations for Supreme Court Justice are required by law to be made by judicial district nominating conventions. Specifically, Section 6-106 of the New York Election Law reads as follows: “Party nominations for the office of justice of the supreme court shall be made by the judicial district convention.” Of the 33 states that elect some or all of their general jurisdiction trial court judges in contestable elections (ie., not including the six states that use retention elections alone), all but one give challenger candidates who lack the backing of party leaders an opportunity to be placed directly on a primary election ballot by filing a notice, gathering a reasonable number of signatures, paying a filing fee, or fulfilling some combination of these requirements. The one exception is New York. The convention system at the heart of this case not only distinguishes New York from every other state, it also distinguishes the office of Supreme Court Justice in New York from every other elective judicial office in the state. All other elected judges in New York State are nominated in a direct primary election, rather than in a judicial convention. And though judges of the Court of Claims, County Court, Surrogate’s Court, Family Court, Civil Court, and Criminal Court may be appointed to serve as “Acting Supreme Court Justices,” exercising the full powers, duties and jurisdiction of a Supreme Court Justice, none of these inferior court judges is selected by a process using a convention system for nominations. Indeed, with respect to all elective offices in the state except Supreme Court Justice, New York allows candidates to petition onto a primary ballot by gathering signatures among the voters. By contrast, New York Election Law § 6-106 prescribes the judicial nominating convention as the sole means of obtaining a nomination for the office of Supreme Court Justice. The absence of any alternate routes onto the ballot as a major party candidate, and the absence of primary elections decided by voters, makes Supreme Court Justice unique among New York State’s elective offices. The electoral process for Supreme Court Justice is unique not merely because it affords but a single path to the nomination, i.e., the judicial district nominating convention, but also because the path is exceedingly difficult to navigate, as described below. B. The Mechanics of the Process The electoral process for Supreme Court Justice has three official steps: (1) the election of judicial district convention delegates and alternates; (2) the judicial district convention; and (3) the general election. However, the true nature of the process is far more complex than a list of its formal phases suggests. The facts below describe the Supreme Court Justice selection process as I find it to be in actual operation. First, the selection of delegates and alternate delegates to the judicial district nominating conventions is dominated by party leadership. The unique, and uniquely burdensome, features of that process virtually guarantee that result. The argument advanced by the New York State Republican Committee that a candidate for the office of Supreme Court Justice who lacks party leader support can clear all the hurdles necessary to elect supportive delegates to the convention is unsupportable. Second, the alternative argument (advanced by the other defendants) that challenger candidates need not elect their own supportive delegates because they can lobby the delegates elected by their party’s machinery is just as unsupportable. The structural and practical impediments are insurmountable. Third, the nominating conventions themselves are certainly not the places where important decisions get made. Rather, they are brief, rote, formal stamps of approval given to decisions made elsewhere. Fourth, the general elections, ostensibly the culmination of the democratic process, play almost as minor a role in the selection of Supreme Court Justices as do the conventions. In most places, the nominees of a single party (either Democratic or Republican) win all or virtually all of the time. In others, cross-nominations by those parties deprive the general election of any contest. Contested elections for Justice of the Supreme Court are the exception, not the rule. If, as the foregoing summary suggests, neither the voters nor the delegates to the judicial nominating conventions are evaluating candidates for Supreme Court Justice and selecting nominees for that office, then who is? The fifth section below discusses how the county leaders, in tandem with district leaders, control the process. In effect, they decide who becomes a Supreme Court Justice in New York courtrooms. 1. The Party Leaders’ Domination of the Election of Convention Delegates and Alternates New York is divided into 12 judicial districts. Each includes numerous Assembly Districts, in whole or in part. Judicial districts generally include more than one county, but at present, no counties are divided between two or more judicial districts. A map depicting the 12 judicial districts, the 150 Assembly Districts and the 62 counties is attached hereto as Appendix A. New York law does not require that Supreme Court Justices reside, either before or after election, in the judicial district in which they are elected. Also, a justice may be assigned to sit in a district other than the one from which he or she was elected. The only legal requirements for office are that the candidate be a citizen of the United States, reside within New York State, and have been admitted to practice law in the State for at least ten years. The number of authorized Supreme Court Justice positions in each judicial district is set forth below: The number of elections each year in each judicial district varies, depending on the expiration of sitting justices’ terms and other factors. During the period from 1990 through 2002, 52 justices were elected (or re-elected) in the First District. The judicial nominating conventions are governed by § 6-124 of the Election Law, which is set forth in its entirety in the margin. Candidates for the office of Supreme Court Justice are nominated at large by delegates from within the particular judicial district. However, those delegates are not elected at large. Rather, they are elected in separate races in each Assembly District (“AD”), or part thereof, within the judicial district. This odd feature of the judicial nominating convention process contributes significantly to the heavy burden it places on those who seek major party nominations for Supreme Court Justice without the support of the party’s district leaders and county leaders. Such challenger candidates face the prospect of as many delegate races as there are ADs in the judicial district—at least nine and as many as 24. The sheer numbers of delegates and alternate delegates add to the burden. Section 6-124 allows the political parties to determine the number of delegates and alternate delegates at their judicial conventions, so long as they are allocated among the ADs substantially in proportion to the votes cast in that AD for the party’s candidate (and on the party’s ballot line) in the previous gubernatorial election. The number of alternates from any district may not exceed the number of delegates. The Democratic Party currently allots each AD one delegate and one alternate delegate, plus an additional delegate and alternate for each 2,500 votes cast in the prior election. The Republican Party follows the same formula for eight of the twelve judicial districts, but uses 4,000 votes (rather than 2,500) as the divisor in the Third and Fourth Judicial Districts, and 5,000 in the Seventh and Eighth Judicial Districts. In 2004, these formulas produced the following numbers of delegates and alternates in each judicial district: Thus, frequently as many as six or seven delegates are elected from each AD to attend the nominating convention for Supreme Court candidates. These high numbers of delegates constitute another distinctive feature of New York’s judicial nominating conventions. Only two state committee members are elected from each AD to the statewide conventions in June that designate candidates for Governor, U.S. Senator, and other statewide offices. The presidential primaries elect approximately five or six delegates per congressional district. While that is approximately the same number of delegates as the average AD in the Second Judicial District sends to the district’s judicial nominating convention, that does not account for an almost equal number of alternate judicial delegates, and in any event congressional districts are typically more than three times as large as ADs. By delegating to the major parties the right to determine the number of delegates and alternate delegates, the Election Law has enabled those parties to make a challenger candidate’s effort to elect a majority of delegates more difficult. In the Second Judicial District in 2004, for example, such a challenge would require running approximately 250 candidates across 24 ADs and two counties. The sheer number of people a challenger must recruit to run for the office of delegate and alternate delegate is a significant burden in itself. Moreover, unlike presidential delegates, New York’s judicial delegates cannot signify on the primary ballot an allegiance to a specific candidate. As a result, even if a Supreme Court challenger candidate were to petition successfully to place supportive delegate candidates on the ballot in each AD within the judicial district, he or she would then be required to inform the voters through campaign literature or advertising of those delegates’ allegiance. And because there would not be just one such race, but at least nine and up to 24, the challenger would have to replicate that public education campaign for each distinct slate of delegates in each AD throughout the judicial district. In this regard, I reject defendants’ contention that a challenger would need to run slates only in enough hand-picked ADs to elect a majority of convention delegates. Even if that were true, the challenger’s burden would be severe, and likely insurmountable. But it is not true; a challenger candidate would need to field delegates in all or virtually all the ADs to have a realistic chance of prevailing in enough races to obtain a majority of delegate support at the convention. This is true not only because a challenger candidate is not likely to win every delegate race under normal circumstances, but also because the prospect of competing against the party leaders elevates the degree of difficulty. A challenger candidate’s strategy would have to include a plan to occupy the organization’s base of support. In testimony I credit, Henry Berger stated that such a candidate must field slates even in ADs she is unlikely to win in order to occupy those loyal to the party leaders, and thus keep them from working against her in other ADs, where success is more likely. In addition to the hurdles established by the electoral scheme and the delegate allocation process, the petitioning rules are onerous. To place an individual (or slate of individuals) on the ballot as a Democratic or Republican candidate for delegate or alternate delegate, 500 valid signatures of party members must be gathered in each AD. As a practical matter, in light of the brief period of time in which petitions may circulate (37 days) and of the rules regarding who may sign them and who may witness the signatures, 1000 to 1500 signatures per AD are necessary to ensure that legal challenges will be fended off. Thus, a challenger candidate for the Supreme Court in Brooklyn or Staten Island would need to gather 24,000 to 36,000 signatures drawn equally from the 24 ADs in the district. And since party members may lawfully sign just one designating petition for judicial delegates, the pool of eligible signers shrinks each time a petition is signed. These features of New York’s electoral system render any effort by a challenger candidate to field slates of supportive delegates and alternates virtually impossible. Indeed, it is considerably easier for an aspiring Supreme Court Justice to petition herself onto the ballot for the office of Mayor of New York City (7,500 signatures—15,000 to 22,500 as a practical matter—from anywhere in the city, see N.Y. Elec. Law § 6-136(a)) than it is to petition onto the ballot slates of delegates to a judicial nominating convention. In any event, I reject the Republican State Committee of New York’s insistence that it is not unduly burdensome for a challenger candidate for Supreme Court Justice to run her own slates of delegates to the judicial nominating conventions. See, e.g., Tr. 151-55 (cross-examination of Berger); Tr. 465 (cross-examination of Carroll); Tr. 2434 (oral argument). I find it significant that the other defendants apparently reject it as well. Justice Helen Freedman, a witness called by the Associations of Supreme Court Justices of the City and State of New York, testified that it would have been prohibitively expensive to field her own petitions for convention delegates, and there was “just no way” she could have run her own slates against the “county endorsed candidates.” Tr. 1475-76; 1782-84. Douglas Kellner, who was called by the New York County Democratic Committee, went further, testifying that any notion that challenger candidates might run their own slates of delegates “twists on its head the system that the Legislature set up.” Tr. 1567-68. By contrast, the petitioning process is rather easy for the major party organizations. Slates of judicial delegates are included on omnibus petitions on which signatures are obtained for other candidates seeking other offices. The county and district leaders can easily mobilize the resources necessary to conduct the petition drives throughout the judicial districts because they are collecting signatures in all of those ADs anyway, for a variety of other party and public offices. Thus, when deciding who to run for the array of offices set for election, the party leaders also decide who to run as judicial delegates and alternates. As a result, contests for the office of delegate and alternate delegate are rare. The party leaders use the massive apparatus of their respective major party to file the necessary petitions across the judicial district. Their slates of candidates for delegates and alternate delegates are usually selected without opposition. And when only one slate of candidates per AD files petitions, those candidates are “deemed elected” and do not appear on the September primary ballot. As a result, most voters in most years across the state do not even see the names of delegates or alternate delegates on the primary ballot when they vote. In New York City, which has more contested delegate elections than any other part of the state, only 12.7% of the judicial delegate seats filled by Democrats and Republicans were contested at the September elections from 1999 through 2003. For Democrats, the dominant party within New York City, the figure was only 19.3% during that period. In short, the extent of the party leaders’ control over who becomes a delegate or alternate delegate varies by judicial district, but the fact that the voters play virtually no role in selecting the majority of delegates and alternates is constant throughout the state. Some of the defendants make much of the infrequent exceptions to that general rule. Most have occurred in the First District, which in this respect and all others the defendants seek to showcase above the other 11 districts. But these exceptions are not helpful to the defendants for two reasons. First, their infrequency proves the general rule that contested elections for the positions of delegate and alternate delegate at judicial nominating conventions do not occur. A summary of the available evidence on the subject is set forth in the margin. Second, when such contests do occur, they are almost always the re-suit of localized disputes between entrenched factions of the party, not of challenger candidates’ efforts to obtain support of party members. More specifically, the overwhelming majority of these disputes involve rival Democratic clubs in Manhattan. These clubs’ members, who must pay dues, represent approximately 1.3% of the registered Democrats in Manhattan. That there are occasional fights for control at the upper levels of the political structure of an AD or a county does not mean the delegate selection process is open to a challenger candidate who seeks her party’s nomination. To the contrary, it is yet another window into how closed the process is to the ordinary voters. Only those few who take the extra step of joining a club in the borough of Manhattan can actually have a role, albeit a minor one, in the selection of judicial convention delegates. The defendants place significant weight on the fact that William Allen and Alan Flacks, a district leader and a community activist, respectively, in the First District, ran successfully for delegate in opposition to the delegate slate sponsored by local party leaders or a political club. But the argument conflates the virtually impossible task of running slates of delegates and alternates across a judicial district with running for delegate in a particular AD. Plaintiff Margarita López Torres, for example, did not seek the office of judicial delegate, or to become a gadfly at a convention otherwise populated by delegates placed there by the party organization. She sought the office of Supreme Court Justice. If her ability to seek the Democratic Party nomination for that office is extinguished by a process that violates the First Amendment, it is no answer to say that she could run for the office of judicial delegate. In sum, the model advocated by the New York State Republican Committee— ie., if a challenger candidate wants her party’s nomination for the office of Supreme Court Justice, she need only go out and elect enough delegates who will vote for her at the convention—defies reality. It is not feasible. 2. The Structural and Practical Impediments to the Lobbying of Delegates The other defendants posit a different model. A challenger candidate need not get her own slates of delegates and alternates elected because all she needs to do is lobby the ones the party leaders get elected. According to this model, New York’s concededly unique judicial nominating convention system was created to “allow an elected body of informed delegates to consult, deliberate and choose Supreme Court nominees who best reflect the interests and values of the delegates’ constituents.” Def. Proposed Findings of Fact ¶ 31. I reject this contention as well. It does not describe how the system in fact works. In reality, with very few exceptions, district leaders and county leaders select the delegates and alternate delegates, who, without consultation or deliberation, rubber stamp the county leaders’ choices (or “package” of choices) for Supreme Court Justice. Most delegates have strong ties to the district leaders who select them, and sometimes work for them as well. . The defendants contend that there is no evidence that delegates are explicitly directed how to vote. That is incorrect, but the more important fact is there is no need for an express directive. Most of the time that is because there is no choice— the party leaders’ candidate or package of candidates is all there is to vote on. On the- infrequent occasion that there is a competing nomination, the political dynamic ensures that the district leaders and their delegates from each AD virtually always support the candidates backed by the party leaders. They do not and will not jeopardize their ongoing, multi-faceted relationships with other district leaders and the county leaders over a candidate for Supreme Court Justice. The power of this political dynamic was demonstrated in the Second District in 2002. For the seventh consecutive year, State Senator Martin Connor was asked to convene the judicial nominating convention. He knew the delegates well, and they respected him and his views. Senator Connor was uncomfortable presiding at the 2002 convention, however, because Clarence Norman (then the Democratic Party’s county leader) and the other Democratic Party leaders had decided to make an unqualified person a Supreme Court Justice. In Senator Connor’s view, it was a horrible choice; the person was already a bad judge on a lower court, and was obnoxious and rude to lawyers to boot. Senator Connor was outraged, convinced that the nomination was bad for the Supreme Court bench. But he said nothing. He dared not tell, the delegates that the county leader’s choice would be a disaster. Instead, after he convened the nominating convention, he declined to continue as its chair and ducked out, saying nothing. The candidate he objected to was nominated and became a Supreme Court Justice. Why was he afraid to voice objection? Because he wanted the county leader to support his choice in a State Senate race. If the minority leader of the State Senate, who testified that he “had five offices and 150 staff members,” Tr. 2208, is admittedly unable to “speak truth to power” despite being outraged by the county leader’s decision to foist a horrible candidate on a convention of delegates, Tr. 2263, it is hardly likely that mere delegates will refuse to do the county leader’s bidding in the ordinary course of events. Explicit voting commands are not needed to keep the delegates in line. In short, the party leaders select the delegates and, as discussed more fully below, they also select the judicial candidates for the delegates to nominate. But the problem with this second model is not limited to the fact that the delegates and alternate delegates do not actually perform the deliberative, consultative, informed roles the defendants ascribe to them. Even if the delegates were amenable to such tasks and attempted to perform them, the time frame available to a challenger candidate is so unreasonably brief that it would doom them to failure. Moreover, in two key districts, that time frame has been deliberately compressed even further by the county leaders. New York law requires that judicial nominating conventions “be held not earlier than the Tuesday following the third Monday in September preceding the general election and not later than the fourth Monday in September preceding such election.” N.Y. Elec. Law § 6-158(5). Thus, delegates are selected at the parties’ primaries in the first two weeks of September, and the judicial convention occurs in the third week of September. That leaves virtually no time for lobbying dozens, if not hundreds, of delegates and alternates. Superimposed upon the statutory time line in the First and Second Judicial Districts is the further constraint of the judicial screening panels. Candidates in those districts must be “reported out” of the screening panel, ie., approved as qualified, to be eligible for nomination. Since the county leaders ensure that the screening panels do not report out candidates until after Labor Day, any lobbying of prospective delegates prior to that time could turn out to be a waste of time. And given the extremely large numbers of delegates and alternates in those districts, the time frame established by state law and party rules simply does not allow a meaningful opportunity for candidates for the Supreme Court to argue their case to the delegates. Defendants make much of the fact that, in the First and Second Districts, candidates for Supreme Court Justice mail their qualifications and other materials to the delegates or even invite them to receptions. But although those contacts are certainly part of the process, it distorts reality to suggest that they reflect efforts to persuade delegates how to exercise their votes at the convention. In fact, the party leaders decide who the delegates will vote for at the conventions. In testimony I credit, Henry Berger stated that the contacts between candidates and delegates are simply part of a ritual that confirms those party leaders’ decisions. The contacts also confirm to the delegates that they are part of the process, which in turn makes it easier for the district leaders to keep the delegates in line so the nomination process runs smoothly. Indeed, I credit Berger’s testimony in its entirety. To the extent it was contradicted by the defendants’ witnesses, I reject the latter testimony. I specifically reject the description of the process described by Arthur Schiff, who has been a Democratic district leader in Manhattan since 1993 and a delegate in the First District’s judicial nominating convention about ten times. Called by the New York County Democratic Committee to refute, among other things, Berger’s testimony that the delegates vote in accordance with the party leaders’ wishes, Schiff accurately described the narrow time frame imposed by state law and major party rules. There “is not a great deal of lobbying done [by Supreme Court candidates] prior to ... the screening panel[’s]” report, Tr. 1298,; rather, they “do their politicking” among the delegates in a brief period that usually lasts only two weeks and “certainly not more than three weeks.” Tr. 1299. However, a lot happens in that narrow window of time, according to Schiff. First, all the candidates are “allowed or persuaded,” Tr. 1292, to go out and make their case to the nearly 200 delegates and alternates. After lobbying all those people, candidates then go to the county leader, and try to convince him they have the most support. Where more than one vacancy exists, the county leader “tries to act as a kind of facilitator” in this process, Tr. 1293, ensuring that those candidates who have the most support become nominated, and that fairness is served as well. Also during this compressed time period, and before the convention begins, candidates who fail to garner majority support achieve “an understanding” of that fact and an acceptance of it, which is why they almost invariably withdraw their candidacies before or at the convention. Tr. 1294-95. To this flurry of alleged activity, defendants’ counsel add yet another task—after lobbying the delegates and alternates, the candidates “engage in logrolling,” presumably using their own minority bloc of supporters to obtain support from other such blocs in multiple-vacancy situations. See Def. Reply Findings at ¶ 19 (“As explained in ... this part of Mr. Schiffs testimony, the final slate is determined through a dynamic and fluid process whereby judicial candidates actively lobby delegates and engage in logrolling in the two to three-week time period before the convention.”) In fact, Schiff s testimony made no mention of logrolling, and there is no persuasive evidence that it occurs among judicial delegates. But the essential point is larger than that: there is no “dynamic and fluid process,” and there would be insufficient time for one even if the participants were so inclined. Concededly, there is not a rich history of challenger candidates even attempting to make their case to the delegates selected by the party leaders. But plaintiff Margarita López Torres has tried it, and her experience in the Second District does not bode well for other such candidates, especially those who deign to run slates of judicial delegates against those fielded by the party leadership. Beginning in March of 2003, López Torres wrote repeatedly to the Kings County Democratic County Committee to learn three basic things: (1) the date, time and place of the convention; (2) the names of the delegates, so she could lobby them; and (3) whether she could address the delegates at the convention. She did not hear from its Executive Director, Jeffrey C. Feldman, until September 4, 2003, after she once again requested the information. Feldman’s response is difficult to reconcile with the defendants’ gauzy characterizations of a democratic process open to all party members who seek the office of Supreme „Court Justice. Def. Reply Findings ¶ 26. He began by mocking the request for a list of delegates to lobby: “I erroneously believed that a learned jurist, such as yourself, would be well aware that Delegates and Alternate Delegates to the Democratic Judicial Convention stand for independent election in the Primary Election, yet to be held.” López Torres Deck, Ex. 6. Thus, no such list existed “anywhere in the world,” Feldman helpfully added. Id. As for López Torres’s inquiry about addressing the convention, Feldman wrote as follows: “I suffer from the innocent belief that the floor of the Convention is open, only, to elected Delegates and their successors. I am not aware of any Convention in my thirty (30) years of attendance, which permitted a non-accredited member to be accorded the privilege of the floor----” Id. In closing, Feldman “note[d] for the record that” López-Torres’s fax machine was “in violation of Federal Communications Commission regulations” and admonished her to bring it into compliance. Id. He then chastised her for mailing him so many (unanswered) letter requests, and spending “copious sums in postage from, presumably, your political committee.” Id. In sum, lobbying judicial convention delegates and alternates is not a realistic route to a nomination even for diligent candidates if they lack the support of party leaders. The defendants insist that they proved otherwise through the testimony of six sitting Supreme Court Justices. Specifically, defendants contend that these witnesses (four from the First District, one each from the Fourth and the Eighth) show that delegates can be successfully lobbied, and nominations obtained, without the support of party leaders. The defendants further contend that unless these sitting justices are branded as perjurers, the plaintiffs must lose. Def. Reply Findings at 2. The latter contention is both incorrect and extremely unfair to the testifying justices; the former unfairly characterizes their testimony. First, the witnesses from the First District confirmed that, without the support of county leader Farrell, a candidate for Supreme Court Justice cannot succeed. Second, the defendants’ characterization of their testimony obfuscates the critical distinction between delegates and district leaders. I find that to the extent it sheds meaningful light on the selection process, the testimony at issue supports the plaintiffs’ contention that the district leaders (together with Farrell), not the delegates, select the Supreme Court Justice nominees. After Justice Phyllis Gangel-Jacob failed to secure party leader support in 1991, her spouse became a district leader. By 1993, Justice Gangel-Jacob became part of Farrell’s “package” of judges, so she was nominated and elected. Her husband stepped down as district leader after she took office. In short, Justice GangelJacob did not, as defendants contend, obtain her nomination over the opposition of the party leaders, or of Farrell himself. Neither did Justice Alice Schlesinger. In 1991 or 1992, she commenced her efforts to become an elected Supreme Court Justice. In 1993, her husband became a district leader. By 1999, she and her husband had achieved Farrell’s support, and she became a Supreme Court Justice. Justice Helen Freedman’s testimony, like that of her colleagues on the Supreme Court bench in the First District, reveals the central importance of obtaining the support of district leaders. Her lobbying was not confined to the narrow window each year set aside for delegate lobbying. Rather, it also occurred during periods of the year when the delegates were not even identifiable. She eventually became part of Farrell’s package in 1988, a year in which he publicly threatened to retaliate against anyone who sought to interfere with three African-American members of his five-candidate package. To be sure, Justice Freedman’s efforts to obtain the support of party leaders included substantial contact with delegates. In the setting of the First District, where Democratic club activity is intense, efforts to appeal to the real decision-makere—the district leaders and the county leader— inevitably involve contacts with the delegates the party apparatus selects. And for reasons expressed above, certain ritualistic contacts with delegates as the nomination season is under way is a required part of the process. But Justice Freedman’s testimony, which I credit, does not alter my findings that (1) neither the voters nor the delegates play a significant role in the nomination of Supreme Court Justices; and (2) an aspiring candidate cannot obtain a major party nomination without the backing of the party leaders, in the First District or elsewhere in the state. Justice Joseph Sise’s testimony is discussed more fully below. Suffice it to say here that lobbying delegates had almost nothing to do with his nomination. Similarly, Justice Robert Lunn secured his nomination in the Eighth District by appealing to the county leader of the Conservative Party in Monroe County, who, as discussed more fully below, played the decisive role in Republican nominations for Supreme Court Justice. Though Justice Lunn, like Justice Sise, campaigned among the voters themselves, he neither lobbied the delegates to the judicial convention in the manner claimed by the defendants nor needed to in order to become the Republican nominee. 3. The Nominating Conventions The judicial nominating conventions themselves are perfunctory, superficial events. They do not determine candidates, but rather formally endorse determinations made elsewhere. The extremely high absentee rate reflects, among other things, the fact that delegates to the conventions know their votes do not really matter. Many choose not to participate in what is, ostensibly, the denouement of the judicial nomination process because it is widely known that the purpose of the convention is to rubber stamp the major party leaders’ choices for Supreme Court Justice. The 2001 Democratic Party convention in the Second District illustrates the disparity between what may appear to happen at a convention and what actually happens. The minutes of the convention and the testimony of its chairperson reveal that the following events occurred: • The convention was called to order by State Senator Martin Connor. • The conventioneers recited the Pledge of Allegiance. • Senator Connor read two letters—one from the state chair to the convener (typically about eight pages long) and one from the state chair to the delegates. • Senator Connor announced that nominations were in order for the office of temporary chair. • People were recognized to make a nomination and a second for that office. • Further nominations for temporary chair were called for. • Persons were appointed as tellers. • A vote was called on the temporary chair nomination. The 77 delegates were polled one-by-one. • The results of the election for temporary chair were declared. Senator Connor was elected. • The temporary chair’s oath of office was administered. • Nominations for the office of temporary secretary were solicited. • A nomination and a second for that office were received. • Further nominations for that office were invited, and such nominations were closed. • Another vote was taken, this time for temporary secretary. • The election results were announced, and the temporary secretary subscribed to an oath of office. • A motion was made, and seconded, that the temporary officers be made permanent officers. • A third vote was held, and that motion carried. • The permanent chair (Senator Connor) and permanent secretary once again subscribed to an oath of office. • Nominating and seconding speeches for the office of Supreme Court Justice were invited. The delegates were advised that time limits of two minutes and one minute, respectively, applied to such speeches. • Senator Connor announced how, pursuant to the New York Election Law, it would be lawful to have a vote viva voce if only one candidate were nominated per vacancy. • A group of six people were nominated to the office of Supreme Court Justice. There were six vacancies to be filled. • Someone else seconded those nominations. • Further nominations were called for. • No further nominations having been made, the chair declared that nominations were closed. • A vote was held, viva voce, on the six nominees. • The chair announced that all six had been elected. • A motion was made, and seconded, that certain people be nominated to a committee to fill vacancies. • A vote was held on the committee to fill vacancies. • The results of that vote were announced. • Senator Connor declared the convention adjourned. That looks like a lot of work. But the entire convention lasted only 20 minutes. Senator Connor testified, with obvious pride, that he did it even faster one year. He explained the seemingly impossible task as follows: “I read very fast, I did it [New York State] Senate style.” Tr. 2230. Although the 2001 Democratic convention in the Second District may have been among the speediest, it was representative of all such conventions in making clear that the decisions of who becomes a Supreme Court Justice are only ratified at the conventions. They are made elsewhere. Not even the defendants contend otherwise. 4. The General Elections The last stage in the process of selecting Supreme Court Justices is the general election in November. For the most part, the general election is a formality. In New York City (the First, Second, Eleventh and Twelfth Districts), the Democratic Party nominees are always elected. Outside the city, there are judicial districts (the Fourth and Sixth) where the Republican nominees are always elected and others (the Seventh and Ninth) where they usually are. Indeed, based on data from 1990-2002, 47% of the races for Supreme Court Justice were not even contested, i.e., there was only one candidate from the Democratic or Republican Parties running. In the First District, 85% of the races were uncontested, as were 91% and 57% of the races in the Sixth and Eleventh Districts, respectfully. Eight of the 12 districts have uncontested races at least half the time. Cross-endorsements are very common. Ninety-five percent of the winners in the Twelfth District during the 1990-2002 period were endorsed by both the Democratic and Republican Parties, as were 51% of the candidates in the Second District. In districts that are not dominated by a single party, the Democratic Party and the Republican Party essentially diwy up the judgeships through cross-endorsements. The relatively few contested elections are not competitive. If a competitive election is defined as one in which the second-place vote-getter receives at least 80% of the winner’s total, only 2% of the elections in New York City from 1990-2002 were competitive. In all, 76% of the general elections across the state during that period were either uncontested or uncompetitive. Finally, candidates without either the Democratic or Republican nomination have no chance of being elected anywhere. Though defendants have emphasized that a challenger candidate can petition onto the general election ballot, no such independent candidate has ever succeeded. 5. The Democratic and Republican Party Leaders Select the Nominees As discussed above, neither of the two models advanced by the defendants is accurate. The first—an aspiring Supreme Court Justice can elect supportive delegates to the nominating convention—is especially far-fetched. The labyrinthine, burdensome procedures preclude it, and further ensure that the entrenched party leaders can install as delegates persons who will do their bidding. For the latter reason, and for the additional reason that the available time frame is preclusively short, the second model also fails. Faced with an inability to get supportive delegates elected, it is cold comfort for a challenger candidate to be told not to worry, she can try to convince the delegates selected by the party leaders. The current system for selecting judges does not work that way and is not structured to work that way. As discussed further below, Margarita López Torres demonstrated in 2003 that indisputable qualifications for the job and immense popularity among the candidate’s fellow party members are neither necessary nor sufficient to get the party’s nomination. Something different is required: the imprimatur of the party leadership. As a result, almost all Supreme Court Justice nominations in New York State are uncontested. There is no evidence of a single successful challenge to candidates backed by the party leaders. The evidence at the hearing did not focus equally on all 12 judicial districts. The most dominant subject by far was the First District, followed by the Second District. To a much lesser extent, conditions in some of the upstate (using that term as it is understood in Brooklyn) districts were addressed. a. The First District The First District’s selection process is the best in the state because of its screening panel, which is discussed further below, and because of the intense involvement of Manhattan Democratic clubs in judicial politics. Those features of the nomination process in the First District have resulted in a measure of quality control that is unmatched elsewhere in the state. Nevertheless, even in the First District, New York County’s Democratic county leader controls the process. Farrell assembles a package of candidates for presentation to the convention, and the delegates approve it. Candidates who Farrell decides should be nominated get nominated. Since Farrell became the county leader in 1981, no Democrat has ever been nominated for Supreme Court Justice in the First District over his objection. Farrell himself explained why, not in this case, but in his deposition in France v. Pataki. “I have the votes to be able to kill someone'—■ in other words, I can’t guarantee I can always make you, but I can surely block you. No one wants to get me angry, so they will not go against me until they have nothing to lose.” PI. Ex. 99(B) at 193 (emphasis added). Farrell further testified at the same deposition as follows: I basically think I would keep the nominating conventions, because and I am now speaking from a self-serving point of view, as opposed to whether it is best in terms of electing minorities. I take the position that it works best for me, because it gives me a better chance to control what goes on, and that, I think, is important in terms of doing some of the things we have done. PI. Ex. 99(A) at 123:16-25 (emphasis added). Farrell possesses this degree of control because he directly controls a sizeable bloc of delegates himself and because he controls the district leaders who select (and control) the remaining delegates. Those district leaders almost always follow the wishes of the county leader. Those seeking to influence the outcome of the process deal with the district leaders and the county leader, not the delegates. Defendants acknowledge that Farrell appears to control the process, and claimed to do so under oath in the France case, but contend that he really does not. The factual support for this claim is thin. First, defendants contend when Farrell has said he controls the process, he really “mean[t] having an appearance of naming the winner.” Tr. 1663 (emphasis added). But that’s not what Farrell himself has said, repeatedly. He has made it clear that no one can become a Supreme Court Justice in the First District without his approval, and that he will punish those who seek to derail his package of candidates. In short, he has asserted that he exercises actual control, not just the appearance of control. Second, the defendants have resorted to various metaphors to advance their claim that appearances can be deceiving. In the more than 20 years Farrell seems to have been making Supreme Court Justices, he has really been picking the winners of horse races after the races were over. Tr. 1663. Through the use of “smoke and mirrors,” Farrell makes everyone think he actually picks Manhattan’s Supreme Court Justices, but that’s merely “what he wants the perception to be.” Tr. 1711. Though it looks for all the world to see like Farrell and his district leaders control the process with an iron fist, when the curtain is pulled back, Farrell is revealed to be nothing more than the Wizard of Oz. Tr. 1736-1740. The reality, defendants contend, is that Farrell’s decisions reflect a grassroots consensus, expressed by the delegates through the district leaders to him as the county leader, as to which candidates should become Supreme Court Justices. Based on the record before me, I find that county leaders in general, and Farrell in particular, actually wield enormous and dispositive power in the process by which Justices of the Supreme Court are selected. No one can get elected Supreme Court Justice in the First Department without Farrell’s support. And since the heart of this case is the plaintiffs’ claim that county leaders, along with district leaders, decide who becomes a Justice of the Supreme Court, and the plaintiffs have produced ample evidence to support that claim, the defendants’ failure to call Farrell or any other county leader as a witness is striking. Even some of the witnesses who testified in defense of the process did not know how much control the county leader has over it. If it were really true that the county leaders’ apparent stranglehold over the process were just an illusion, one would think they—or at least one of them—would take the witness stand and say so. If the widely-held belief that the county leaders’ control of the system is simply the result of their “smoke and mirrors” act, the defendants should have called as witnesses the architects of what they now claim is a deliberately-created popular misconception. Their only explanation for failing to do so—that the county leaders may be called at a trial on the merits if a preliminary injunction is granted, see Tr. 2405—is no explanation at all. b. The Second District From the 1960s, when the Kings County Democratic Party was under the leadership of Meade Esposito, through the time of the evidentiary hearing in this case, when Clarence Norman was the county leader, the county leader in Kings County has selected the Supreme Court Justices in the Second District. No one “recommended” by that county’s organization has failed to obtain the nomination. Candidates opposed by that organization do not stand a chance. The record of financial contributions by candidates for Supreme Court Justice to political groups controlled by Norman has fostered not only the (accurate) perception that he, rather than the voters or delegates, controlled the selection of the justices, but the further perception that he used the wrong criteria in making his decisions. For the purposes of this case, only the fact of the county leader’s control matters, and it has been established overwhelmingly. The experience of plaintiff Margarita López Torres places in clear relief the control exercised by Norman and the district leaders who answered to him while he was county leader. It also reveals most of the flaws in the process by which Supreme Court Justices are selected in New York. López Torres is a 1979 law school graduate who spent her first 13 years in the profession as a legal services attorney and an attorney for the City of New York. In 1992, she became a candidate for a countywide seat on the Civil Court of the City of New York. She received the support of the Kings County Democratic County Committee, which assisted her onto an uncontested primary ballot, and of course she was elected at the general election in November 1992. López Torres was off to a great start in her judicial career. The path to the office of Supreme Court Justice, at least in the First and Second Districts, typically runs through the Civil Court. Shortly after she was elected, however, López Torres lost her way. It began when she was told by Norman, the county leader, and Vito Lopez, her district leader, to hire a particular young attorney as her court attorney. The directive came in a November 4, 1992 letter to López Torres from Steven Cohn, a Brooklyn Democratic Party official. The letter stated as follows: Congratulations on your election. Clarence [Norman] and Vito [Lopez] have asked me to refer this wonderful gentleman to you as your Law Secretary. Please be so kind as to interview him and obtain the necessary paperwork for his employment. Thank you. PL Ex. 85. The letter attached a resume. Defendants contend that Cohn was merely suggesting a candidate to López Torres. The text of the letter, particularly the direction to obtain the paperwork necessary for the young man’s employment, supports López Torres’s view that it was stronger than a suggestion. At any rate, the context in which the letter was written cannot be ignored, and that context compels the conclusion (and I find) that the party leaders, having in their view placed López Torres on the bench, also felt entitled to place employees in her chambers. Their subsequent conduct, discussed below, provides further support for that finding. The position of court attorney is critical to the Civil Court judge; the lawyer who occupies it provides help in all phases of managing and deciding cases. Upon inquiry into the credentials and references of the young man she was told to hire, and after interviewing him, López Torres concluded, reasonably, that he was unqualified for the position. So she hired a qualified attorney for the position instead. This was perceived by Norman as an act of defiance. In December of 1992, Norman chastised López Torres for not hiring the young lawyer he had sent to her, telling her that she did not understand how the process worked. He directed her to fire the attorney she had hired. When López Torres refused, Norman told her she would not become a Supreme Court Justice. At approximately the same time, Lopez, the district leader who had assisted López Torres in becoming a Civil Court judge, angrily confronted López Torres about her refusal to hire the attorney sent to her by “County,” ie., Norman. Her ungratefulness to Norman had made Lopez look bad. To fix that problem, Lopez directed López Torres to redeem herself by firing her court attorney and hiring “County’s” choice. She again refused. In June 1995, Lopez gave López Torres another opportunity for redemption: if she hired Lopez’s daughter, a recent law school graduate, as her court attorney, Lopez would get López Torres nominated to fill an upcoming vacancy on the Supreme Court that the party leadership had earmarked for a “Latino.” López Torres declined, refusing to fire the qualified attorney she had initially hired to the position. From that point forward, Lopez never supported the judicial aspirations of López Torres, and indeed he worked against her in 2002, when she was reelected to the Civil Court. In 1997, López Torres first sought the Democratic nomination to the office of Supreme Court Justice. She requested a meeting with Norman, who met her on August 22, 1997, in Junior’s Restaurant on Flatbush Avenue in Brooklyn. Norman reminded López Torres that her failures to hire as her court attorney the people sent to her by party leaders had been a serious breach of protocol. López Torres replied that she was at that point between court attorneys, and was willing to consider a qualified applicant referred by Norman. Norman told López Torres that she needed to obtain the support of the “Latino” district leaders. Three weeks later, however, Norman placed an urgent call to López Torres, demanding that she remove her name from consideration at the upcoming nominating convention. Her failure to do so, Norman declared, would be a direct challenge to him. An open convention, involving the competing nominations of more candidates than vacancies, was “not the way it works,” according to Norman. López Torres Decl. ¶ 19. López Torres declined, expressing the naive view that she had a right to seek the nomination at the convention even without Norman’s support. At the convention itself shortly thereafter, Norman was proved correct, as not a single delegate proposed López Torres for nomination. López Torres tried again in 1998, when she applied to, and was interviewed by, the Kings County Judicial Screening Committee. In late September, before the nominating convention, she tried repeatedly to ascertain the results of that process, ie., whether the screening committee had reported her as qualified. Neither Jerome Karp, the chair of the committee, nor Norman would provide that information, so López Torres ended her bid for the nomination. In January 2002, López Torres renewed her effort to obtain the Democratic nomination for Supreme Court Justice. She contacted Norman and Karp to tell them so and to commence the screening process. Karp responded that the screening panel would consider only candidates referred by Norman. Norman made it clear that he would not make such a reference. In February and again in May of 2002, he told López Torres that his concerns with her candidacy had nothing to do with her qualifications, but rather arose out of her disloyalty—her failure to hire the people sent to her by the party leadership and her refusal to withdraw her candidacy in 1997. Without the support of Norman, López Torres’s efforts to obtain a nomination at the 2002 convention were doomed. Her name was placed in contention by a supportive delegate, but the overwhelming majority of delegates voted instead for the package of candidates supported by Norman. Norman was not content to simply block López Torres’s effort to be elected as a Supreme Court Justice. In that same year, she was up for re-election to the Civil Court, and he chose to have the Democratic Party in Kings County support another nominee, an unusual tactic that evidenced the party leadership’s overt hostility toward López Torres. Elections for that judicial office, as discussed earlier, involve a primary, in which a challenger candidate like López Torres can appeal directly to the voters. López Torres did just that, and she not only prevailed over the party leaders’ preferred candidate in the primary, but she received more votes in the general election for Civil Court (200,710) than any of the Democratic candidates for Supreme Court Justice received on the same day. In January of 2003, López Torres again wrote to Norman and Karp, declaring her candidacy for the office of Supreme Court Justice and requesting to be considered by the screening committee. At that time, it remained the policy of the committee to screen candidates only at the request of Norman or his Republican counterpart. Norman, who faced mounting criticism of the process, allowed the screening committee to interview López Torres. However, Norman still refused to support López Torres. In a meeting on June 6, 2003, he reiterated his displeasure at her refusal to withdraw her candidacy in 1997. He