Judicial elections

  • September 15, 2015
    Guest Post

    by Victorien Wu, Fried Frank Fellow, NAACP Legal Defense and Educational Fund, Inc.

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    The Fourteenth and Fifteenth Amendments to the U.S. Constitution hold the promise of equal political citizenship for Black voters. Yet, this commitment remains unfulfilled in Terrebonne Parish, Louisiana, where, in 2008, a white sitting judge of the parish court, Judge Timothy Ellender of the 32nd Judicial District Court (“32nd JDC”), was reelected to a six-year term without having to face opposition, even after he was suspended by the Louisiana Supreme Court in 2004 for attending a Halloween party wearing blackface, an orange prison jumpsuit, handcuffs, and an afro wig in an apparent parody of Black criminal defendants who appeared before him.

    The reelection of Judge Ellender to his seat in 2008 was made possible by the discriminatory method of election that the state of Louisiana uses for the 32nd JDC. Each of the five judges of that court is elected at-large from the parish, meaning that all voters in the parish can cast a ballot in electing each of the five judges. However, Black voters constitute a minority of the electorate (at 20 percent), and voting in Terrebonne is deeply polarized along racial lines. In seven elections that were conducted at large in Terrebonne between 1993 and 2014 and that featured at least one Black candidate and at least one white candidate, Black candidates preferred by the Black community received an average of 87 percent of Black voter support, but an average of only 8 percent of white voter support.

    As a consequence, under at-large voting in Terrebonne, the preferred candidates of Black voters have been consistently defeated, regardless of whether the candidate has run as a Democrat, as a Republican or otherwise. For example, in the 1994 election for the 32nd JDC, Anthony Lewis, a Democrat and the only Black candidate, received about 73 percent of Black voter support, but only 1 percent of white voter support, thus losing the election. Reflecting the same dynamic 20 years later, in the 2014 election for the Houma City Court, another court in the parish, Cheryl Carter, a Republican and the only Black candidate, received about 85 percent of Black voter support, but only 8 percent of white voter support. As a result, she too lost the election.

  • May 11, 2015

    by Nanya Springer

    Say the words “judicial selection” to average Americans, and their eyes may very well glaze over.  But tell them the story of Wendy Baggett ‒ a woman whose three-day-old baby died because her doctor neglected to take her off of blood pressure medication during her pregnancy ‒ and a spark of concern may appear in those dull pupils.  Then explain that a jury sided with Baggett in her medical malpractice claim against the doctor, only to be overturned by business-backed judges on the Alabama Supreme Court, and that concern may transform into shock, curiosity and perhaps, eventually, action.

    It’s well understood that telling human stories is more effective than talking about political, economic or societal problems in the abstract.  That’s why Life of the Law, a bi-weekly podcast series, focuses on compelling, human-driven stories instead of merely analyzing legal arguments and dissecting Supreme Court rulings. 

    The story of Baggett is a true one, used to exemplify how the practice of electing judges affects people from all walks of life.  As explained in the podcast, in states where judges are forced to campaign for the bench, courts are becoming increasingly hostile to tort plaintiffs and to criminal defendants.  This makes sense; campaigns cost money, business interests have plentiful funds from which to donate, and judges, whether consciously or unconsciously, tend to side with the interests of those who helped them win their increasingly expensive elections.  (In criminal cases, judges are often attacked by their business-backed opponents for being “soft on crime” when they side with defendants, merely because it’s an easy attack.)

  • May 5, 2015
    Guest Post

    by Burt Neuborne, Norman Dorsen Professor of Civil Liberties at NYU School of Law.  His most recent book, “Madison’s Music: On Reading the First Amendment” (The New Press 2015), argues that effective campaign finance regulation is fully consistent with the First Amendment.

    Florida’s ban on personal solicitation of campaign funds by candidates for judicial office recently survived a free speech challenge because, in Chief Justice Roberts’ words, “judges are not politicians.”  I fear, however, that the chief justice’s bright-line distinction between “judges” and “politicians” understates the need for independent judgment by “politicians” and overstates the “political” neutrality of judges.

    Judges, especially elected judges, exercise “political” power. Does anyone doubt, for example, that the Supreme Court is exercising “political” power in the gay marriage cases? The chief justice is surely right, though, in recognizing that continued faith in our politically powerful judiciary turns on public confidence that elected judges are not merely engaged in advancing the narrow interests of powerful constituents or financial supporters.  That’s why the Williams-Yulee decision is correct. But the same may be said about faith in democracy itself. Legislators and executive officials cannot – and should not ‒ behave just like impartial judges. They should have close ties to the people who elected them. Their votes and official actions should generally reflect the self-interested preferences of their supporters.  But, as Edmund Burke taught us in his 1774 Address to the Electors of Bristol, there are important occasions in the life of a democracy when even a “politician” with close ties to her constituents should enjoy the appearance and reality of exercising independent judgment free from pressure by financial supporters. Chief Justice Roberts’ bright-line distinction between judges and “politicians” preserves an elected judge’s capacity for such Burkean independence, but obliterates it for legislators and executive officials.

    Instead of relying on a tyranny of labels, the Williams-Yulee opinion should trigger discussion of how best to free “politicians” as well as elected judges from the appearance and reality of excessive financial thralldom to their large financial supporters. Maybe then we can begin to rebuild faith in our democracy; hold real elections, not auctions; and insist that our “politicians” occasionally think for themselves.

  • January 30, 2015

    Five years after the Supreme Court in Citizens United struck down restrictions on corporate spending in elections, the American political landscape has become one where influence can be bought and the voices of wealthy donors drown out other perspectives. 

    Almost immediately after the Citizens United decision, outside spending in elections spiked.  Over the next five years, it more than doubled.  Super PACs used hefty budgets to produce attack ads against candidates who were not to their liking—affecting outcomes in not only political races, but also in state judicial elections. 

    Judges perceived as being unfriendly to PACs’ interests were attacked under the pretense of being “soft on crime,” resulting in measurably harsher treatment of criminal defendants by state supreme court justices.  Further, the last five years have seen a flood of dark money into elections.  As many commentators have noted, donor secrecy breeds mistrust and, possibly, corruption.

    Americans expect the courts to be fair and impartial, but as special interest groups spend more and more money to influence courts, public faith in these institutions is waning.  Soon, the Supreme Court will have to decide how important judicial independence is to our justice system in Williams-Yulee vs. The Florida Bar, a case that could, if wrongly decided, further diminish public trust in the courts.  For those concerned about Citizens United, Williams-Yulee, or the corrosive impact of unrestrained special interest spending on our democracy, see the following ACS resources:

    Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases, Joanna Shepherd and Michael S. Kang

    Five Years Later, Citizens United Wreaks Havoc on Our Democracy, Fred Wertheimer, ACSblog

    The Top Five Myths About the Democracy For All Amendment, John Bonifaz, ACSblog

    Supreme Court Briefing: Williams-Yulee vs. The Florida Bar, Video

    Interview with Professor Tracey George on Williams-Yulee, Video

    Democracy and Our State Courts: Fighting Back After Citizens United, Video


  • November 3, 2014

    by Caroline Cox

    Geoffrey R. Stone, the former ACS Board Chair and current co-chair of the Board of Advisors for the ACS Chicago Lawyer Chapter, explains in The Daily Beast the importance of Senate elections for the courts.

    Shailia Dewan reports in The New York Times on the judicial race in Montana in which record amounts of money are being spent.

    In Slate’s “Amicus” podcast, Dahlia Lithwick looks at judicial elections, state voter ID laws, and the voting problems expected in the upcoming election.

    The Brennan Center for Justice provides stories of voting in Texas, a state with one of the strictest voter ID laws in the country.

    Jenée Desmond-Harris provides a list in Vox of ways voters’ rights could be violated on Election Day and how voters can respond.