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The Problem with Judicial Elections

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Know the laws in your state that protect LGBT people and people living with HIV.

“If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.”

— Former Justice Sandra Day O’Connor, U.S. Supreme Court1

The U.S. is virtually the only country in the world that selects judges by popular election. Thirty-eight states hold elections to select judges for their highest courts. These elections range from contested multicandidate contests to single candidate up-or-down retention votes. Ninety percent of appellate court judges face some kind of election.

Here’s the problem: judges are not politicians. Unlike legislative and executive officials, judges by design should decide individual cases without taking popular opinion into account. Each day, thousands of elected judges in state courts across the country make decisions that could cost them their jobs if the law requires a ruling that is unpopular enough to anger a majority of voters or inspire special interest attacks. This threat is particularly acute when counter-majoritarian constitutional rights are at stake, including those of LGBT people. If judges can’t safeguard the rights of vulnerable minorities without fear of retaliation, that dynamic renders our constitutional right to due process extremely vulnerable.

The very practice of electing judges is antithetical to the notion of an independent judiciary. Far from being radical or controversial, the idea that judges should not be subject to retaliation for unpopular rulings is grounded in the U.S. Constitution, which grants federal judges life tenure and protected salaries.2 Alexander Hamilton explained in Federalist 78 that fidelity to the law cannot be expected by judges who hold their office subject to reelection as the judges’ fear of displeasing the re-electing authority would be “fatal to their necessary independence.”3

Hamilton is right. In recent years, special interests have used the popular election and reelection of state judges to intimidate, vilify or remove judges in the hopes of influencing case outcomes. Still other judges openly run against the legal rights of LGBT people in order to pander to voters. Scholarly research now confirms that their efforts, in some cases, have been successful with tipping the scales in favor of wealthy business interests and against defendants in criminal cases.4

A. Judges Are Not Politicians


“Judges are not politicians, even when they come to the bench by way of the ballot. And a state’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.”

— Chief Justice Roberts writing for the majority in Williams-Yulee v. The Florida Bar4

Judges in states with contested partisan judicial contests inevitably feel pressure to curry favor with the political parties that helped elect them and likely feel pressure to rule in ways that will attract the political fundraising necessary to keep them in their jobs.

A critical part of our democracy stands on public confidence in the judiciary. Unfortunately, a 2014 Lambda Legal survey found that LGBT people generally don’t trust the court system as a means of achieving justice. Reasonable regulation of campaign and political activities by judges and judicial candidates is paramount to improving confidence in state courts.

“When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.”

— Former Supreme Court Justice Sandra Day O’Connor, New York Times op-ed, May 22, 2010

How can we expect justice and a fair trial if judges and judicial candidates are allowed to directly solicit campaign contributions or engage in partisan political activity?

“Justice Don Willett is the most conservative justice on the Texas Supreme Court. Tea Party patriots, pro-life and pro-family conservatives, limited-government advocates, constitutionalists and any who value American liberty should support Justice Don Willett, a rock-solid judicial conservative who has never legislated from the bench. Justice Willett is one of only a few judicial candidates I have endorsed, and I do so wholeheartedly. He must be re-elected in 2012. Please join me in standing with Justice Don Willett."

— James C. Dobson, featured on the “Endorsements” page on DonWillet.com, the campaign website for Texas Supreme Court Justice Don Willet.

“If you want a Chief Justice who is guided by prayer & not politics.”

— Google ad for Judge Dan Kemp’s campaign for Chief Justice of the Arkansas Supreme Court.

Endorsement for Justice Jeff Boyd

Endorsement for Justice Jeff Boyd.

“Thanks for the endorsement @TXRightToLife.”

— Tweet, @JeffBoydTX, Twitter account for Texas Supreme Court Justice Jeff Boyd

“Barack Obama would never appoint Judge Jeff Hughes to the Supreme Court because Judge Hughes is pro-life, pro-gun, and pro-traditional marriage.”

— Campaign ad for Judge Jeff Hughes’ campaign for Louisiana Supreme Court.

“I’m a Republican and you should vote for me. You’re going to hear from your elected officials, and I see a lot of them in the crowd. Let me tell you something: the Ohio Supreme Court is the backstop for all those other votes you are going to cast… So forget all those other votes if you don’t keep the Ohio Supreme Court conservative.”

Ohio Supreme Court Justice Judith French at a GOP rally

Most states have taken steps to insulate state courts from inappropriate political and special interest influence. However, many states do not go far enough, and others do very little at all.

Victory for Fair Courts in the U.S. Supreme Court

In 2015, the U.S. Supreme Court held in Williams-Yulee v. The Florida Bar that states could prohibit judicial candidates from personally soliciting campaign contributions in order to better keep courts fair and impartial. As the Court found, campaign contributions can create an appearance and risk of favoritism. The ruling protected an important aspect of judicial campaign finance laws in the majority of states, which help guard against a perception among the public that justice is for sale. The case paves the way towards securing further reasonable restrictions on judicial campaign conduct in the states that elect judges.

B. Special Interest Spending in Judicial Elections Has Exploded


A century or more ago, many states in the U.S. decided to adopt popular elections as their way of selecting their judges.6 Unfortunately, Citizens United, the 2010 Supreme Court ruling that unleashed unlimited independent spending in elections, has dramatically altered the politics of judicial races, blurring the line that separates justice from politics.7

Dissenting in Citizens United, now-retired Supreme Court Justice John Paul Stevens noted the decision “unleashes the floodgates of corporate and union general treasury spending” in judicial elections at a time “when concerns about the conduct of judicial elections have reached a fever pitch.” Spending on state Supreme Court elections more than doubled in the past decade, exceeding $200 million and breaking records every cycle.8

This spending raises real concerns about the ability of our courts to remain independent and provide equal access to justice—particularly for marginalized, politically unpopular and disenfranchised populations. Seventy-six percent of Americans believe that campaign cash affects court decisions. Almost half of judges agree.

C. Attacks Against Judges Threaten Rulings in Favor of Individual Rights


Political attacks on the courts stemming from rulings affecting the rights of LGBT people and their families are nothing new. Often when judges rule on civil rights issues they risk backlash from those who oppose the rights of minority populations, whom the courts are charged to protect.

For years, those on the far-right have jumped at the opportunity to label any decision with which they disagree as “judicial activism.” This strategy was successfully employed, for example, by antigay groups like the National Organization for Marriage (NOM) in a 2010 campaign to remove three well-respected Iowa Supreme Court justices after that court’s unanimous decision to strike down Iowa’s ban on marriage for same-sex couples. NOM’s bus tour against “activist judges” traveled the state on a crusade of distortion, not only to punish specific justices but also to threaten judges across the nation if they ruled for equality and against NOM’s extreme, antigay agenda.

This line of attack was replicated by politicians and anti-LGBT organizations in the wake of the Supreme Court’s ruling in Obergefell v. Hodges. In his dissent, Chief Justice John Roberts wrote that the "five lawyers" (his fellow Justices) who ruled in favor marriage equality “have closed the debate and enacted their own vision of marriage as a matter of constitutional law.”9 This theme was repeated by Justice Scalia, who wrote, “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” And once again, those on the far-right repeated that “five unelected lawyers” were “destroying the once great republic, where people rule,” both widely and often.

In 2015, an elected Tennessee judge was reprimanded for an opinion decrying the “judi-idiocracy” that resulted in the “iron fist and limp wrist” of the Obergefell ruling. Some elected judges in the South continue to resist or defy the ruling in Obergefell.

LGBT civil rights rulings are not the only decisions that are twisted and exploited to undermine judicial independence or take down a judicial candidate. Attack ads are particularly vicious when they exploit criminal legal issues.

If you live in one of the 38 states that elect judges, you may have seen one of those oft-charged “soft on crime” TV ads claiming that a judicial candidate “sides with child predators,” “is sympathetic to rapists” or “helped free a terrorist.”

Some of the most manipulative and dishonest TV attack ads don’t come from groups interested in criminal justice at all, but rather from powerful business and political interests that wish to remove judges who rule against them on issues like voting rights, reproductive justice, consumer protections or LGBT equality.

The exact identities of the special interests behind judicial election attack ads are often hard to discern, as many of these groups are not required to disclose their donors or report their expenditures under state law. Often cloaked in anonymity, these groups use “soft on crime” ads as a means to exploit viewers’ emotions and tilt elections, at the expense of criminal defendants and judicial fairness. Overall, 82 percent of all judicial election attack ads in 2013-14 discussed criminal justice issues.10

D. The Consequences for the Due Process Rights of Individuals Are Dire


It might come as no surprise to learn that these judicial election attacks, while vile, are very effective at influencing elections. But it’s disturbing to learn the extent to which the threat of such attacks also influences judges’ rulings. Recent empirical studies suggest that state court judges in criminal cases are imposing harsher punishments on defendants—including death sentences—in apparent attempts to bolster their reelection campaigns.

1. When Justice Is for Sale, More People Go to Jail

A recent study shows that TV attacks ads in judicial elections are costing people their liberty. According to the study, the more TV ads aired during state supreme court judicial elections, the less likely justices were to find in favor of criminal defendants.11 The results predict, on average, that a state with 10,000 ads would see judges vote differently and against criminal defendants in 8 out of 100 cases.12

This finding is outrageous, and the implications are far-reaching. Criminal caseloads in our state trial courts totaled about 20.5 million in 2012, and disproportionately represented in this statistic are people of color, low-income people, LGBT people and people living with HIV (with many of these identities overlapping and intersecting). If you are a defendant facing the state in a criminal case, receiving a fair trial is fundamental to accessing justice. This means, among other factors, that the case must be presided over by an impartial judge who makes decisions based on the law and the facts and not on campaign contributions and super-PAC spending or concerns that the judge will be labeled “soft on crime.”

2. Judicial Elections Are Literally Killing People

Concern that bias, prejudice and politics will interfere with the fair administration of justice is particularly consequential when an individual’s very life is at stake. Alarmingly, a new study from the American Constitution Society shows that justices chosen by voters reverse death penalties at less than half the rate of those who are appointed, suggesting that politics play a part in appeals.13 Whether a justice was elected or not was a far stronger variable in determining outcomes of death penalty cases—beyond state politics and more than race.14

A recent report from the Brennan Center for Justice at NYU School of Law reviewed 10 empirical investigations into the impact that judicial election has on outcomes for defendants. According to the report, “These studies, conducted across states, court levels, and type of elections, all found that proximity to re-election made judges more likely to impose longer sentences, affirm death sentences, and even override sentences of life imprisonment to impose the death penalty.”15

Supreme Court Justice Sonia Sotomayor.

As Justice Sotomayor's dissent in Woodward v. Alabama noted, “[s]ince 2000 ... there have been only 27 life-to-death overrides, 26 of which were by Alabama judges.” In attempting to explain why Alabama had become the only state in which judges routinely override the decisions of juries in order to impose capital punishment, she surmised that, “[t]he only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”16

3. Corporate Spending Means More Pro-Business Rulings

In several recent judicial elections across the country, million-dollar battles have been waged by trial lawyers and large corporations.17 From 2000 to 2009, conservative and business groups spent $26.3 million on state court elections—more than twice as much as plaintiffs’ lawyers and liberal groups. Campaign contributions in states with partisan judicial races were three times greater.18 A report by the Center for American Progress found that from 1992-2010, the six states with the highest judicial campaign spending ruled in favor of corporations 71 percent of the time. A study from the American Constitution Society reveals that the more campaign contributions from business interests that justices receive, the more likely they are to vote for business litigants appearing before them in court.19 The analysis reveals that a justice who receives half of his or her contributions from business groups can be expected to vote in favor of business interests almost two-thirds of the time.20

4. Spending in Judicial Elections Affects Judicial Diversity

Several studies have attempted to determine how different judicial selection methods affect judicial diversity. At least at the trial level, results have been inconclusive, usually showing only minor differences in percentages in states with different systems. Judicial elections have been important for achieving diversity at the trial court level in certain communities—particularly where voters are black or Latino. However, the lack of diversity at the high court level is striking. Only 10 percent of state supreme court justices are nonwhite. Only 3 percent of high court justices are Latino—just 10 total.21 A 2009 report by the American Judicature Society found that appointive methods were more likely than popular elections to place people of color judges on state high courts.22

A recent study from the Center for American Progress looked at the success rates of all incumbent state high court justices running for re-election since 2000.23 The study found that supreme court justices of color have a harder time holding onto judicial seats than white justices.

The data revealed a:

  • 90 percent re-election rate for white incumbents
  • 80 percent re-election rate for black incumbents
  • 66 percent re-election rate for Latino incumbents

The report found that in many states with elections, “advocates for diversity have succeeded in pressing for diverse appointments, but these victories are often fleeting.”24 In many states where judges of color were appointed, they were rejected by voters in their first election. The research showed that appointed black and Latino justices running in their first election were only re-elected 68 percent of the time.25

The findings of the Center for American Progress report suggest that increased campaign spending in judicial elections has a deleterious effect on efforts to foster racial diversity on state supreme courts.

For example:

  • Today, all of Alabama's supreme court and appellate court justices, including both its civil and criminal appellate courts, are white. Since spending in Alabama Supreme Court elections skyrocketed in the 1990s, not a single African American has sat on the state’s high court.
  • The huge spending in Ohio judicial races over the last few decades brought about a loss of racial diversity on the Ohio Supreme Court. Two of the three black justices ever to serve were immediately voted off the high court after their initial appointment.26
  • Louis Butler—the first black justice appointed to serve on the Wisconsin Supreme Court—immediately lost re-election after a misleading and racially tinged attack ad from his opponent accused him “working to put criminals on the street” including a defendant who was convicted of raping an 11-year-old girl “who went on to molest another child.” Justice Butler was the only incumbent to lose re-election in more than 40 years.27

E. The Right-Wing Attack on Judicial Campaign Rules


In addition to the growing influence of money in judicial elections, judicial independence is threatened by right-wing efforts to dismantle codes of judicial ethics that exist to prevent judges from turning into political partisans.

James Bopp, longtime general counsel for the National Right to Life PAC, is also the attorney behind lawsuits like Citizens United v. FEC, which take direct aim at campaign finance limits. Bopp, who often uses anti-abortion groups as plaintiffs in his lawsuits, has also looked to roll back state restrictions on judicial campaign conduct. Bopp successfully argued Republican Party of Minnesota v. White, the 2002 Supreme Court ruling that on First Amendment grounds struck down rules barring judicial candidates from announcing their positions on legal and policy issues.28 The ruling in White significantly weakened the ability of states to limit the political behavior of judicial candidates—creating the conditions that allow judges to run openly on anti-choice and anti-LGBT platforms while campaigning.

Judges must decide individual cases on the basis of the law and the facts, and not on personal politics or popular opinion. When judges make their own personal views on issues a part of their campaign, individuals understandably question whether they will receive a fair hearing. Explicitly or implicitly telegraphing decisions in advance undermines the right to due process.

Unfortunately, almost immediately after the ruling in White, judicial candidates in many states were sent questionnaires by political parties and special interest groups seeking to nail down positions on issues like access to abortion, equal marriage rights, voter ID and the role of religion in the public sphere.29 While candidates have a right not to answer such questions, contested campaign pressures often make it difficult

to decline.

After White, it was not uncommon to see judicial candidates in several states openly expressing anti-LGBT views.

“The rules have changed. I agree with the new rule because I believe the old system kept the voters in the dark and was arbitrary and elitist. I want you, the voters, to know that I oppose abortion. I support having the Ten Commandments in our schools and courthouses. . . . I support the Second Amendment right to bear arms. . . . I believe marriage is between only one man and one woman. I live a life of traditional western Kentucky values. I think the way you think.”

— Rick Johnson, candidate for Kentucky Supreme Courts, embracing the ruling in White.30

“We can't keep disparaging our military and promoting things like same-sex marriage, L-G-B-T. To hear the President of the United States say that we are promoting L-G-B-T. Let's think about what that is: lesbian, gay, bisexual and transgendered right... Same-sex marriage will be the ultimate destruction of our country because it destroys the very foundation upon which this nation is based.”

Roy Moore, candidate for Chief Justice of the Alabama Supreme Court at a campaign rally in 2012.

White also opened the door to a series of lawsuits over the years, by Bopp and others, attempting to expand the ruling to strike other ethics rules that limited campaign conduct like canons prohibiting direct solicitation of contributions and rules designed to limit partisan political activity, like permitting judicial candidates to endorse or campaign for other candidates for political office.31 Right-wing forces continue to target individual court elections and laws governing how state judges are selected, blocking proposed changes from contested elections to merit selection systems in Minnesota and Pennsylvania. Bopp filed lawsuits attempting to change the way states with merit selection, like Kansas and Alaska, choose judges.

“We have a pro-life House and a pro-life Senate and a pro-life governor… We pass pro-life legislation—and we get sued. The next frontier is the courts.”

Mary Kay Culp, Executive Director, Kansans for Life, July 2014

 


 

1. Republican Party of Minn. v. White, 536 U.S. 765, 792 (2002) (O’Connor, J., concurring).

2. U.S. Const . art III, §1.

3. The Federalist Papers, No. 78.

4. Joanna Shepherd, Justice At Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions (2013), available at http://www.acslaw.org/ACS%20Justice%20at%20Risk%20%28FINAL%29%206_10_13.pdfJoanna Shepherd and Michael S. Kang, Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases (2014), available here.

5. Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015). Lambda Legal, along with six other organizations, filed an amicus brief before the U.S. Supreme

Court in support of the Florida Bar.

6. Scott Greytak, Alicia Bannon, Allyse Falce and Linda Casey, Bankrolling the Bench: The New Politics of Judicial Elections 2013-14, at (Laurie Kinney ed., 2015), available at newpoliticsreport.org/report/2013-14

7. Id.

8. Supra note 6.

9. Obergefell, 135 S. Ct. at 1732 (Roberts, CJ., dissenting).

10. Kate Berry, Brennan Center for Justice, How Judicial Elections Impact Criminal Cases (2015), available at https://www.brennancenter.org/sites/default/files/publications/How_Judicial_Elections_Impact_Criminal_Cases.pdf

11. Supra note 4.

12. Id.

13. Id.

14. Supra note 10.

15. Id.

16. Woodward v. Alabama, 134 S. Ct. 405, 409 (Sotomayor, J., dissenting) (citing Velasco, “More Judges Issue Death despite Jury,” Birmingham News, at 11A (July 17, 2011).

17. Supra note 6.

18. Id.

19. Supra note 4.

20. Id.

21. Michele L. Jawando and Billy Corriher, Center for American Progress, More Money, More Problems: Fleeting Victories for Diversity on the Bench at 5 (Oct. 2015), available at https://cdn.americanprogress.org/wp-content/uploads/2015/10/26055523/Jud...

22. Malia Reddick, Michael J. Nelson, and Rachel Paine Caufield, Racial and Gender Diversity on State Courts: An AJS Study, 48 JUDGES’ J 28 (Summer 2009).

23. Supra note 21.

24. Id. at 9.

25. Id.

26. Id.

27. Id.

28. Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002).

29. Bert Brandenburg and Amy Kay, “Crusading Against the Courts: The New Mission to Weaken the Role of the Courts in Protecting our Religious Liberties,” Justice at Stake, 13 (May 2007).

30. T.R. Goldman, “In Kentucky Supreme Court Race, Judges Get Out Their Soapboxes,” Legal Times, (Nov. 6, 2006).

31. Williams-Yulee, 135 S. Ct. 1656 (2015); Wolfson v. Concannon, 811 F.3d 1176 (9th Cir. Ariz. 2016).

 

The Impact of Judicial Selection on LGBT Rights Cases »