Sec. 7100.12. Appendix I. Voting procedures

(a) Statement of purpose.

(1) The commission considered what voting process would best serve the constitutional and statutory mandate to carefully evaluate and then nominate to the Governor well qualified candidates for the Court of Appeals. Under the leadership of the late Columbia Law School Professor Herbert Wechsler, the commission implemented, and has since successfully used, a voting process that both encourages consensus among the commissioners and promotes a thorough consideration of each candidate. Voting for candidates through successive ballots fosters open discussion of candidates among the commissioners and a deliberative process. This depth of discussion helps ensure that each commissioner's perspective is heard and that the commissioners have ample information to enable them to compare candidates and select those well qualified for the Court of Appeals.

(2) The commission carefully and thoroughly tested the voting procedures described below. A voting system in which each commissioner ranks a finite number of candidates and assigns the highest number of points to his or her most preferred candidate makes it extremely difficult to manipulate the voting and greatly reduces the possibility of bloc voting.

(b) Overview.

(1) Pursuant to section 63(3) of the Judiciary Law, a recommendation of a candidate to the Governor requires the concurrence of at least eight commissioners. During the voting process, the concurrence of at least eight commissioners is established through the requirement that a candidate receive at least eight “affirmative votes” to be nominated. An affirmative vote is a vote by a commissioner that ranks a candidate high enough on that individual commissioner's ballot to place that candidate within the number of candidates remaining to be nominated.

(2) If the commission has not nominated any candidates through the concurrence of eight or more members pursuant to section 7100.8(c)(3) of this Part, each commissioner present during the nomination process will vote for 15 candidates he or she considers well qualified for the Court of Appeals. A candidate is considered nominated if eight or more commissioners affirmatively vote for that candidate and if he or she receives the highest number of points. (A candidate's “points” refers to the aggregate of the ranking each candidate receives during a round of voting.)

(3) If the candidate or candidates receiving the highest number of points are nominated, then, if the candidate or candidates receiving the second greatest number of points also received the affirmative vote of at least eight commissioners, that candidate(s) will also be nominated in this round of voting. This process will be repeated with regard to the candidate(s) receiving the next highest point total until the candidate with the greatest point total among candidates not already nominated in that round of voting fails to receive the affirmative vote of at least eight commissioners. At that point, the round of voting ends.

(4) If there is a tie for the highest number of points, all of the tied candidates receiving the affirmative votes of at least eight commissioners will be nominated. However, if not all of the tied candidates received at least eight affirmative votes, then, after the nomination of those candidates receiving at least eight affirmative votes, that round of voting ends.

(5) Additional rounds of balloting will be conducted if the first round of balloting does not yield the required number of candidates. All candidates who are not nominated or dropped from consideration are included on subsequent ballots. The results of voting from prior rounds are not included when tabulating subsequent voting; all candidates start each round of voting with zero points and zero affirmative votes.

(6) If a round of voting ends and the number of candidates nominated is not the maximum number specified in section 63(2)(b) or (c) of the Judiciary Law, any commissioner may call for further discussion of candidates not previously nominated. During this discussion, candidates may be nominated with the concurrence of at least eight commissioners. If, at the end of discussion, the number of candidates nominated is less than required by section 63(2)(b) or (c) of the Judiciary Law, the voting process will continue.

(7) At any time following the completion of the first ballot, in the case of a vacancy in the office of Associate Judge, a member may offer a resolution reducing the number of candidates to be nominated, within the range stated in section 63(2)(b) or (c) of the Judiciary Law. The concurrence of at least eight commissioners will be required to pass such a resolution.

(8) At any time during the voting process, a candidate may be dropped from consideration on the concurrence of at least eight commissioners so long as the number of remaining candidates plus the number of candidates already nominated is within the range specified in section 63(2)(b) or (c) of the Judiciary Law.

(c) Illustration of voting process.

To illustrate the voting process, the commission will place on its website sample ballots and examples of the balloting process.