Instant Incumbents
by Amy Ngai, Gotham Gazette, 01 Mar 2006

LINK

A dismal turnout and an undemocratic nominating process were not the most alarming aspects of the so-called Special Election on the last day of February, when voters in three State Assembly districts that represent roughly 375,000 people in New York City picked new legislators in what was nearly a foregone conclusion:

Linda Rosenthal won the Assembly seat from the West Side of Manhattan, replacing Scott Stringer, who has become Manhattan borough president
Sylvia Friedman won the Assembly seat from the East Side of Manhattan to replace Steve Sanders, who has retired
Alan Maisel took the Assembly seat from the Canarsie/Mill Basin/Flatlands etc. district in Brooklyn, replacing his former boss Frank Seddio, who has taken over the borough's newly created second Surrogate's Court judgeship.

What is most alarming is that these new members, though technically elected for only the next six months, have become instant incumbents -- which means they are likely to remain in office for the next 20 years. Yes, they have to run for re-election this fall, but as incumbents they will have the full power of their office and the support of their political party. And being an incumbent in New York means never having to say goodbye.

Staying Forever
State Senator John Marchi has been in office for 49 years. But more to the point, in the past 22 years, there have been only 30 instances when incumbents in the New York State legislature have been defeated in a general election, according to a report by the New York Public Interest Research Group. Since all 212 members are up for election every two years, this means there were only 30 incumbent defeats in more than 2,000 races.

In another survey, the National Conference of State Legislatures cited that in the 2002 elections only eight percent of the New York State Senate and 16 percent of the New York State Assembly were not returned to office -- one of the lowest turnover rates in the country.

The Incumbent Advantage
As Gotham Gazette has explained before in the online game, "Donkey Con (Elephant Evasion)," politicians are re-elected at staggering rates because of the state's incumbent protection racket:

Access to the ballot: Incumbents have an easier time both getting on the ballot and assuring that any potential challengers stay off of it. Ballot-bumping is New York's bloodsport - the process by which politicians hire election lawyers conversant with the state's arcane election law to comb their rival's nominating petitions to find the slightest errors, so that they can be stricken from the ballot. Incumbents are not alone in engaging in this practice, but they have the resources - the backing of their political party, the troops, and the money - to be the strikers rather than the stricken.

Name recognition: An unquantifiable advantage of incumbency is the name recognition it provides. Voters frequently head to the polls on Election Day armed with selections for big ticket offices such as president, governor or mayor. Local races do not garner as much interest, so voters tend to vote for familiar names.

Political Parties And Campaign Cash Incumbents use their party organizations to reach out to more voters.

Both the Republican and Democratic organizations in New York have extensive funding mechanisms to re-elect members of the Senate and Assembly. In the most recent election cycle, the Center for Public Integrity reported that the Democratic Assembly Campaign Committee spent $5.6 million while the minority Republican Assembly Campaign Committee contributed $2.1 million to Republican candidates. In the Senate, the Senate Republican Campaign Committee spent $9.5 million to hold on to their slim majority and the Democrats spent $1.4 million to fund their State Senators in office.

Powers of incumbency: As elected officials, members have the power to secure funding through member items for special neighborhood projects and provide various constituent services. During campaign season, they can "call in their chits" for having provided these services. Those who have been the beneficiaries of the legislator's favors might fear the closing of the tap if they were to publicly support a challenger.

Others benefits of incumbency include:

Multiple district-wide mailings funded by tax payer dollars
Unparalleled access to the community through speeches and official legislative events
Fundraisers in Albany during legislative session that are well attended by lobbyists
Inadequacies of Incumbency
A permanent legislature doesn't just hurt the cause of democracy, it goes directly against the interests of the voters. It deters qualified candidates from seeking office and thus stymies fresh ideas. Legislators are less accountable to the public, and more beholden to party leaders. It is no coincidence that the New York State legislature, with among the smallest turnovers in the nation, has been labeled the most dysfunctional in the nation, the legislators weak and non-responsive, deferring to the Assembly Speaker and the Senate Majority Leader.

For the voter, incumbency means there are no real choices on Election Day: In some races there are no challengers at all; in most, the results are a foregone conclusion. The lack of options diminishes voter participation and is reflected in turnout rates. No more than 30,000 voters participate in Assembly and State Senate races in each district where there is an incumbent, and it is often a lot less.

The lack of choices and the depressed voter turnout amount to voters rubberstamping party choices on Election Day - a kind of social promotion for elected officials.

Overcoming Incumbency
One solution that obliterates the problems of incumbency is term limits. A recent survey conducted by Sienna College Research Institute found that 68 percent of respondents support term limits for state legislators. In New York City, voters established through referendum term limits for citywide office, barring incumbents from seeking more than two terms. On a statewide level, the legislature would have to pass measures to limit the amount of time they can serve in office.

There are other ways of promoting competitive elections - through reform of the process of redistricting and by public financing of campaigns in a system similar to that set up by the New York City Campaign Finance Board. The Sienna College survey found 74 percent favored redistricting done by an independent non-partisan commission. Currently there is a bill in the Assembly (A6287) that proposes such reform.

Amy Ngai is program associate for Citizens Union Foundation, which publishes Gotham Gazette.

March 1, 2006
New York State Sued for Failing to Meet New Voting Guidelines
By MICHAEL COOPER

LINK

ALBANY, March 1 : New York State, which will not make the deadline for replacing all its aging voting machines by next fall's elections, was sued Wednesday by the federal Justice Department, making it the first state to be sued for failing to meet new voting guidelines imposed by Congress in 2002.

The new federal guidelines were designed to prevent the kind of electoral chaos that marred the 2000 presidential election in Florida and to make voting easier for disabled voters. But New York State's efforts to modernize its election system have fallen behind the rest of the nation, delayed by government gridlock and partisanship.

New York was supposed to create a statewide database of registered voters by Jan. 1, but has not even come close to doing so, the lawsuit contends. And while New York has accepted more than $49 million in federal aid that is earmarked for the state to replace its old lever voting machines by this fall's elections, the state yet to come up with standards telling localities what kinds of new g machines will be acceptable. So it is impossible for most counties to buy new machines and train poll workers in time.

The state  which has received more than $221 million in federal funds to overhaul its voting system  could stand to lose some or all of the $49 million it received for new machines, according to the lawsuit, which was filed here Wednesday in United States District Court for the Northern District.

The Justice Department noted in a news release that "states had nearly three years to comply with the provisions enforced under today's lawsuit" and said that New York "was not close to compliance" with the federal law, which is called the Help America Vote Act. No other state has been sued for failing to comply with the law.

The state and the Justice Department have been negotiating for weeks to try to reach an agreement to avoid a lawsuit. In a letter sent to the state in January, Wan J. Kim, the assistant attorney general for the Justice Department's civil rights division, wrote that "it is clear that New York is not close to approaching full H.A.V.A. compliance and, in our view, is further behind in that regard than any other state in the country."

State officials said that they are still negotiating with the federal government. "We've engaged in extensive negotiations and, despite the lawsuit, we are hopeful an agreement can be reached to resolve this matter," said Christine Pritchard, a spokeswoman for the Attorney General's office, which is defending the state.

Civic groups have long warned that New York's aging election machines are an accident waiting to happen. During the last three mayoral elections in New York City there has been confusion over the vote tallies in either primaries or run-offs.

But efforts to modernize the system have proceeded glacially, even with the infusion of federal money. A partisan squabble over appointments at the state Board of Elections stalled efforts by the Legislature to overhaul the election system. Then, when they finally passed a law last summer, lawmakers left many of the biggest issues unresolved: they left it up to the counties to decide what kind of voting machines to buy, and to the state Board of Elections to set the standards for which types of voting machines will be acceptable.

The Board of Elections has yet to set the standards, and localities, including New York City, have complained that the most recent drafts are unacceptable.

FEDERAL JUDGE GLEESON UPSETS SYSTEM OF JUDICIAL CONVENTIONS THROUGH WHICH
PARTY BOSSES MADE SUPREME COURT NOMINATIONS WITHOUT PRIMARY ELECTIONS.
CAREFULLY CONTROLLED CONVENTIONS ARE ALLEGED TO HAVE RESULTED IN THE SALE
OF JUDGESHIPS TO SOME WHO MAY HAVE TAKEN BRIBES TO RECOUP THE COST OF BUYING ROBES.
By Henry J. Stern
February 3, 2006

LINK

The most important political event in New York in 2006 was a decision handed down last Friday by Federal Judge John Gleeson of the Eastern District of New York, which ruled unconstitutional the judicial conventions through which party bosses have chosen State Supreme Court Justices for a century.

In a thoroughly documented decision, which you can link to here, Judge Gleeson ruled that the convention system, in which judges are hand-picked by delegates chosen for that purpose, usually officers of local political clubs, deprives the public of its legal right to participate in the selection of judges. Under current rules, all judges in New York State EXCEPT Supreme Court Justices are either appointed by elected officials or chosen in open primary elections.

The convention system for Supremes has resulted in the evils of judges buying their judicial offices from county bosses. The grateful beneficiaries of these nominations are sometimes expected to assume obligations to the men who put them there, which may influence their decisions in cases directly involving the leader or his clients, or in cases where litigants have appealed to the county leader to intervene, in the style of The Godfather, who assisted his people in the settlement of disputes. Judges have also tried to recover the money they paid for their robes by extorting sums from litigants that appear before them, in the manner of 19th-century police captains in the Tenderloin and similar districts. This was the case of Judge Victor Barron.

The reality of the current judicial nominating process is that the delegates 'elected' by the voters, sometimes a dozen or so for each assembly district (plus another dozen alternates), are in fact persons unknown to the great majority of voters, who ritually approve the nominees of the county political organization. If the election is not publicly contested, the names of the nominees do not even appear on the ballot. The judicial candidates of the Democratic Party, in boroughs where that nomination is tantamount to election, are in fact chosen by party bosses, sometimes in exchange for substantial sums of money, theoretically intended for campaign expenses, but often finding their way into the political leader's pockets, or to favored business firms for minimal and totally unnecessary goods and services. The businesses (pollsters, printers and publicists) launder the boodle before paying off those in power who had sent the judicial candidates to them to be fleeced.

FOR STUDENTS OF GOVERNMENT, THE HISTORY OF INDIRECT ELECTIONS IN THE UNITED STATES

Historically, the practice of indirect election was not confined to Supreme Court Justices. BTW, in New York State the "Supreme Court" is in fact a trial court. There are two levels of the judiciary above it, the Appellate Division, where the judges are selected by the governor from among supreme court judges, and the Court of Appeals, which is the pinnacle of the state judiciary. The Court of Appeals was for many years, directly elected by the people, but abuses in campaign funding and a high degree of partisanship caused the method to be changed about twenty years ago. Now the judges are appointed by the governor from a list presented to him by judicial screening panels, which solicit nominations and then screen candidates. This process has to some extent minimized the role of politics and money in judicial selection.

The President of the United States himself is elected indirectly, with the Electoral College making the final decision. Over time, the electors have lost their discretion, and now simply mirror the votes of their states (except for the rare 'faithless elector'). Nonetheless, a President can be elected who has received fewer popular votes than his rival: Hayes v. Tilden in 1876, said to be the stolen election, Benjamin Harrison over Cleveland in 1888, and Bush over Gore in 2000.

United States Senators were elected by State Legislators until April 8, 1913, when the Seventeenth Amendment to the Constitution was ratified by the 36th state, Connecticut, Louisiana took until June 11, 1914 to become the superfluous 37th state (out of 48). Left-leaning Massachusetts was the first to ratify (on May 22, 1912, just nine days after it was proposed by Congress). New York State was fourth, acting on January 15, 1913. Senators have now been popularly elected for 92 years, still less than half the time since the founding of the Republic

THE BACKGROUND: HOW THIS CASE CAME TO BE BROUGHT

Ironically, it was the actions of ex-Assemblyman and Brooklyn Democratic leader Clarence Norman, until his felony conviction in fall 2005, and Assemblyman Vito Lopez, his successor, that began the chain of circumstances that led to this decision. When Margarita Lopez-Torres was elected to a county-wide Civil Court in Brooklyn in 1993 on the recommendation of Vito Lopez, she rejected every job applicant sent to her by the county organization, including Mr. Lopez' daughter who sought employment as a law secretary. The payback for this defiance was the county's refusal to designate her for re-election when her term expired in 2003. She ran anyway, winning re-nomination in a sharply contested Democratic primary. The next year, she sought the county designation for Supreme Court Justice, which was decided by a judicial convention, not a primary. Predictably, the county organization turned her down although she was among the longest serving judges on the civil court.

In the spring of 2005 the position of Surrogate suddenly became vacant when Justice Michael Feinberg was removed for corruption by the Court of Appeals, upholding the recommendation of the Commission on Judicial Conduct. You can find details of l'affaire Feinberg on our website; just google his name. The vacancy thus created came in time to be filled by a primary. Three candidates competed, and Judge Torres won by an extremely narrow margin, some 200 votes.

At this time, the powers that be in Brooklyn, fearing the loss of the lucrative judgeship, which has the power to appoint receivers and grant other judicial patronage, communed with Governor Pataki and they agreed to create a second position of Surrogate Judge in Kings County, plus a Supreme Court seat in Queens for its strong leader, Tom Manton. In exchange for this courtesy, a number of upstate judgeships were created for Republicans and some Court of Claims positions for Governor Pataki to appoint. The timing of the legislation was exquisite, the new judgeship came into existence too late to file for the primary, but in time for the general election, so the new Kings County surrogate would be chosen by Democratic party bosses, without the need for a primary election.

Assemblyman Frank Seddio was chosen as the new surrogate, after Assemblyman Joseph Lentol declined the county leader's offer of the nomination. Note that both candidates were members of the State Assembly, where the support of Speaker Sheldon Silver had been essential to creating the new positions. There was something for everyone, except the voters.

This matter is by no means settled. An appeal to the United States Court of Appeals for the Second Circuit is inevitable, and beyond that the losing party may seek review in the Supreme Court of the United States, a far cry from the Supreme Court of the State of New York, the trial court which is the subject of the controversy.

THE DECISION GIVES HOPE FOR FURTHER JUDICIAL REFORM,
MONEY-DOMINATED PRIMARIES AREN'T THAT GOOD EITHER,
PARTICULARLY WHEN SITTING JUSTICES SEEK RE-ELECTION.

Judge Gleeson's decision is in the finest tradition of responsible judicial activism. He found an undemocratic situation in which the people were left powerless to elect judges. The concentration of power in one man or a tiny group spawned other evils. Just as it is dictatorships that start wars rather than democracies, it is political dictators who plunder and twist the mechanisms of justice to serve their own ends. And for every crime in the courts that is exposed and punished, think of how many wrongs are done of which we are unaware. Bribery is a crime of consent and collusion, and it is rare for a victim of extortion to make a complaint.

The underlying principle here is that if a system is too unfair and unbalanced, giving power to one at the expense of everyone else, the courts will intervene. There is wide latitude allowed in methods of election and districting. Even the DeLay design for Texas, adding seven Republican seats and breaking up Democratic districts, passed judicial muster. But Judge Anthony Kennedy did warn, on that occasion, that it was possible for some district lines to be so odious and unfair that they would not meet the test of constitutionality. Where the line will be drawn depends on who draws it.

The State Legislature now has the opportunity to reform the system to comply with Constitutional requirements of access and fairness. Our prediction is that they will be unable to do so, they can't even agree on buying voting machines. The matter will inevitably return to the courts. There is a particular problem here with judges seeking re-election. If we want them out of politics, we cannot require them to raise substantial sums for advertising in order to remain on the bench.

If there is an appeal to the Supreme Court, we hope that the two new Justices, John G. Roberts and Samuel A. Alito, will have genuinely open minds when they consider these matters. This is not an economic issue, nor an abortion or gay rights case. The issue here is what level of unfairness must be reached to raise a Constitutional issue. We believe that deprivation of the right to vote is eminently unfair. The public has a fundamental right to elect judges, or to delegate that right to an elected official whom they have elected.

Beset by murdered children and transit strikes, it is comforting to reflect that something has happened which, if followed up, will lead to a more honest judiciary, which is required if justice is to be done for all people, rich or poor, wired to the political machines, or independent of them.

One cannot write about this case without thanking the Brennan Center for Justice, which brought the lawsuit. While we do not necessarily agree with every case they bring (even fighters for justice may have issues of judgment), this case was in the best tradition of the quest for honesty, decency and fairness. We know Justice Brennan would be proud.

But, this change has been postponed:

Judge delays bench shakeup
NY DAILY NEWS, March 5, 2006

LINK

The judge who struck down New York's system for picking candidates for the bench stayed his ruling until after the November elections because state officials pleaded for more time to develop a new procedure.
Brooklyn Federal Judge John Gleeson ruled in late January that the state's unique practice of using political conventions, rather than primaries, to decide who would make the ballot for state Supreme Court justice gave too much power to political party bosses.

The conventions have long been blasted by critics as patronage-driven affairs in which allies of party leaders were rewarded with judgeships.

Gleeson signed an order Friday staying his injunction until after the 2006 election cycle. He said all parties involved in the suit, including Brooklyn Surrogate Judge Margarita Lopez Torres, who brought the challenge, had agreed to the delay.

State election officials had worried there wasn't enough time for candidates to circulate nominating petitions for the primaries that were to have replaced the conventions.

November 29, 2004
Are Judicial Nominations Too Political?
Public Forum at the New York County Lawyers' Association Home of Law, sponsored by the NYCLA Task Force on Judicial Selection
Burt Neuborne

LINK

In theory, trial judges in New York State are elected by the voters. But in practice, those who want to be judges are at the mercy of unelected political party bosses and their back room dealings, NYU Law professor Burt Neuborne told an audience of about 100 judges, law clerks and attorneys Monday night at the New York County Lawyers Association. "It is not a defensible process from any political science standpoint," Neuborne said.

In New York, unlike any other state, major party candidates for judge are nominated at a judicial convention--as opposed to running in a primary or nonpartisan general election. In other words, a hopeful judge's only chance of appearing on the ballot as a Democrat or a Republican is to be chosen at that party's judicial convention. What's more, say critics of the current system, the results of those conventions are often decided by just a handful of party leaders in the state.

Critics charge the system is problematic because, in New York, virtually no judges win at the polls unless they are on a party's ticket--usually Democratic in New York City and Republican in the rest of the state. Therefore, argued Neuborne, judicial hopefuls don't have a realistic chance of taking the bench without securing their party's nomination. "Once the nomination occurs, the election is nothing more than a coronation," Neuborne said. "Selecting by a majority process is a good idea," he said, but the democratic system only works if it's a "true expression of majority will."

Neuborne was joined on the panel by former New York City Councilman Stanley Michels; Ernst Rosenberger, former Justice of the Appellate Division, First Department; and Michael Sweeney, an adjunct professor at Fordham University School of Law and legal counsel to the Commission to Promote Public Confidence in Judicial Elections--a group created by New York Chief Judge Judith Kaye in 2003. The event was moderated by Columbia University Law School Vice Dean and Professor Richard Briffault.

Neuborne also serves as the legal director at NYU's Brennan Center for Justice, which recently brought a federal lawsuit challenging New York's judicial nomination system as unconstitutional. The lead plaintiff, Margarita Lopez Torres, was elected to Civil Court in Brooklyn in 1992, but was not able to persuade the Democratic Party to nominate her for Brooklyn's Supreme Court--the highest trial court in the state. Her supporters publicly complained that the Democratic Party in Brooklyn blackballed her for declining to hire people put forward by party leaders.

The judicial nomination process has received a great deal of attention due to recent scandals involving allegations of bribery and cronyism in Brooklyn. One former Brooklyn judge pleaded guilty in 2002 to taking a bribe and was later sentenced to three to nine years in prison; another was indicted last year for allegedly taking bribes in divorce cases; a third lost his job for mishandling an escrow account and for wrongfully subletting an apartment, while a fourth came under scrutiny for how he managed an elderly relative's savings.

Last year, New York's head judge, Judith Kaye, put together a panel, the Feerick Commission--headed by John Feerick, the respected former Dean of Fordham Law School--to promote confidence in the judiciary. Sweeney, counsel to the commission, told the audience on Monday night that the organization's research revealed that many were skeptical about whether the judiciary was truly impartial. One reason was because of the, "perception that political leaders control the election process," Sweeney said.

Among the reforms suggested by the commission is a requirement that all judicial candidates participate in independent screening panels--though the commission did not recommend that they be rated as qualified to be placed on the ballot. Stanley Michels, the former City Council member, said he supported screening panels. He held up Manhattan as an example, saying that a judicial screening panel created in 1976 has resulted in "a very diverse bench and very good bench."

But Rosenberger, a retired judge, defended the current system on the theory that, for the most part, it insulates sitting judges from having to defend their seats. "Campaigning for a sitting judge is a very, very difficult thing, not only because the judge is working full time, but also because a judge who is sitting has far more restraints on activities than does a lawyer who is not a sitting judge," he said. "When my first term was up and the time came for me to seek re-election, I was told by many people: 'Don't be concerned about it, because you will be renominated.'" Rosenberger said the reassurance freed him from the political pressure of campaigning to hold onto his seat.

FYI: State Chief Judge Judith Kaye this week appointed a 29-member commission to study ways to "reaffirm public trust in our judiciary." Kaye cited judicial elections as a particular area of concern. Judicial elections drew renewed attention last fall when respected Brooklyn Civil Court Judge Margarita Lopez Torres nearly lost her seat due to a feud with the borough's political leaders. Former Fordham University Law School Dean John Feerick will chair the panel, which is a mix of judges, legal aid advocates and attorneys. Feerick also sits on the three-member panel that is charged with oversight of New York City's homeless family shelters as a result of a January settlement in a long-running legal battle between homeless advocates and the city. (4/18/03)

John D Feerick :
Director at Wyeth
Madison, New Jersey
HEALTHCARE / DRUG MANUFACTURERS - MAJOR
Director since 1987

Professor Feerick is 68 years old and has been a Director since 1987. He is a Professor of Law at Fordham University School of Law and is the former Dean of Fordham University School of Law, a position he held from 1982 until 2002. He is also a director of the Group Health Incorporated, Sentinel Group Funds, Inc. and Sentinel Pennsylvania Tax Free Trust.