By Oliver Morrison
This country was founded on the idea that people should be allowed to vote: no taxation without representation. Every election a new generation is transitioned gently to adulthood with the admonition “rock the vote.” The right to vote has become so sacrosanct that even undemocratic countries such as North Korea and Syria hold elections.
The unwavering belief in elections even extends to electing judges, the one branch of government that was originally immune to populism. For the first 80 years of our country no states elected judged, but now 40 states put at least some of their judges to a vote.
But this past summer—when I was reporting in Memphis some voters had to remember the names over 100 judicial candidates, it’s clear that the democratic intent of voting is being undermined. The ballot is so long and overwhelming that voters I talked to said they were so overwhelmed by judicial candidates they didn’t have time to understand the elected offices that do matter.
This is not to say judicial elections can’t ever serve a democratic purpose. Colorado took advantage of this in 2010 when voters ousted two judges who had deliberately withheld evidence in a murder trial. Voters in Iowa removed its three “legislators in robes” that had ruled in favor of legalizing gay marriage in 2010. And in Florida voters expressed their disapproval of the federal health-care overhaul in a close vote that just failed to remove three of its justices.
But the partisan nature of the last two examples is further reason to abolish judicial elections. For every Colorado, there are multiple Floridas and Iowas, where judicial independence is undermined by partisanship, money and voter ignorance. The New York Times recently reported that a Republican committee spent $900,000 to attack a judge who insisted on applying the state constitution to sex offenders.
The country’s founders created courts to be fair to everyone, even people out of favor with voters. Alexander Hamilton originally envisioned an independent judiciary where judges protected minorities from “the injury of the private rights of particular classes of citizens, by unjust and partial laws” of the majority.
When judges are elected, they stop being impartial. Judges in Washington State gave softer sentences once they knew that they were retiring and didn’t have to be elected, according to a 2012 study from the Haas Business School.
And the Independent Institute found that elected judges give harsher penalties to companies outside their voting district than it: penalties for out-of-state defendants averaged more than $250,000, while in-state penalties were less than $70,000. Judges know who is voting for them and where their support needs to come from.
Sometimes judicial elections give off the appearance of corruption. A jury ordered a coal company in West Virginia to pay $50 million in 2002. Two years later that company gave $3 million to a judge’s election campaign, who promptly voted to overturn the $50 million award. Although the US Supreme Court later ruled that the judge should have recused himself, only a handful of states require judges to do so.
Campaign contributions for judicial elections have sky-rocketed, more than doubling between the 1990s and 2000s, to more than $56 million in 2012. This money undermines trust in the judicial system: more than 76 percent of voters distrust judges who take campaign contributions according to the American Bar Association.
Even when voters aren’t bombarded with adds, they aren’t always a good judge of their justices. Los Angeles elected the “bagel lady,” known for the shop she and her husband ran before being elected in 2006. She defeated an opponent who had legal trouble on the show “Love Connection.” The Los Angeles County Bar Association had labeled both candidates unqualified.
Voters frequently don’t pay attention to judge’s qualifications because they have too many candidates to choose from. More than half of the Nashville Bar Association recently had “no opinion” about the two challenging judges in a recent election. If lawyers and judges don’t have an opinion on these candidates, how are ordinary voters supposed to?
About a third of voters who care enough to show up at the polls don’t even bother to vote for judges. Recently retired Chief Justice Wallace Jefferson of Texas says, “The voters don’t know the judges and they can’t be expected to know the judges.” The judicial code of conduct prohibits judges from making political speeches, endorsing candidates, or soliciting funds. They’re not supposed to even comment on cases that might appear before them. So the controversial issues that might make a voter interested in a judicial election rarely come up.
Ballots crammed full of candidates and propositions prevent even well informed voters from making thoughtful choices about local judges. The ballots in Florida were so long in 2012 that many counties urged voters to ask for absentee ballots: that way they could fill out the four to 10 page ballots without rushing. Voters without absentee ballots had to wait for upwards of eight hours in line, in part because it took so long to cast all the required votes.
Now it could be that voting for judges is the worst possible system except for all the rest. But more than two thirds of states already select some or all of their judges using a merit-based process instead of through an election. This usually involves a committee of mostly legal experts who select qualified candidates.
Since 1977 five states have removed the right to vote for some of their judges and none have added the right. An article in the Miami Law Review states that, “To date, no state that has adopted a merit plan has opted to replace it with an elective system.”
The most recent battle against elections took place in Tennessee where voters decided in November to let the governor select its appellate court judges from a panel nominated by experts. The Tennessean described the referendum as “the theft of your right to elect the people who sit in judgment of us.”
The column ended with a warning that is worth quoting at length: “We will hear a lot about how bad it will be for our judges to be part of a political process; how corrupting money in campaigns can be; how voters don’t take the time to know much about the candidates for judge; and how a merit selection process ensures that our judges will be impartial. To me, that all sounds like manure.”
The end of voting will always stink to democratic purists. But the US has always been a republican democracy, not a pure democracy. The country is founded on the idea that we can improve the democratic process by setting some limits on what is required of voters.
It’s time to stop the vote.