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Texas Chief Justice: Parties Stand in the Way of Judicial Election Reform

by Eric Robinson, published
By 1875, Reconstruction was coming to a halt and the Democrats were beginning to take power in Texas. The much hated measures of radical Republicans resonated in the minds of many Texans and prompted the drafting of the Texas Constitution of 1876.

The document rolled back many of the big government policies supported by the Republican Party, resulting in a decrease in the power, salaries, and terms of most government officials. However, one overlooked implication of this was an article that called for the elections of every judge in the state, a move that was intended to ensure accountability, but would later require judges to be affiliated with a party in order to appear on the ballot.

Flash-forward 137 years later; the article has survived and has remained a point of controversy for many working in the Texas judicial system. Recent comments by former Chief Justice Wallace Jefferson further highlight the hotly contested issue:

“It is a broken system. We shouldn't have partisan elections. I do not like the concept of a Republican or Democratic judge. I think fundraising undermines the confidence in a fair and impartial judicial system. So I would change it completely if I were king.”

Those for the original judicial article maintain the argument that it keeps judges accountable to the voters.

“The reason our state constitution provides for the election of judges is not because the voters are more skilled than the governor at evaluating resumes, but because judges should be accountable to the people through the electoral process for their fidelity to the rule of law,” writes David K. Dewolf, a Professor of Law at Gonazaga University, in the Seattle PI.

The dispute is not necessarily with the election of judges, but that they are required to run under a partisan label. Many who oppose the current system argue that voters, having little knowledge of judicial candidates up for election in first place, base their votes primarily on party identification.

"We have the ability to straight-ticket vote here and so, in 2008, when I was on the ballot, it was McCain versus Obama, and Republicans in Texas by a large margin voted for McCain, but they voted straight-ticket," Jefferson said. "So, they voted McCain and every single Republican down the ballot. And in Harris County that year, Obama was extraordinarily popular so they voted for Obama and every Democrat down the ballot. I won election easily, in Houston there was almost a complete sweep of Republican judges -- they were replaced by Democrats."

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Partisan judicial elections are not a new issue and has been contested for well over 60 years. The earliest reform efforts to change judicial elections began in 1946 when The Texas Civil Judicial Council proposed an amendment that called for the merit selection of all Texas judges. The amendment received wide distribution, but failed to be adopted by the legislature.

A similar amendment was proposed again in 1955, but also failed due to the broadness and over-ambitiousness of the proposal, which, in addition to calling for merit-based judicial selections, also called for the merger of the Texas Supreme Court and the Court of Criminal Appeals (Texas has two Supreme Courts -- one for civil cases, the other for criminal cases) and the administration of the Judiciary by the Supreme Court.

Reform efforts were revived in 1971, when Chief Justice Robert Calvert created a task force for court improvement. After conferences were held in 1972 to discuss the issue, the task force produced a proposal that called for merit-based judicial selection.

The proposal was presented to the 1973 legislative session, only to be rejected. Starting in 1974, 15 proposals calling for merit selection and nonpartisan elections for judges were rejected over the course of 4 legislative sessions.

Reform efforts continued through the 1980s and became such a contentious issue between the judicial and legislative branches that a failed attempt at reform resulted in the resignation of a chief justice in 1987. The justice, John Hill, created the Committee of Merit Elections and MeritPAC for the purpose of assisting candidates interested in judicial election reform.

The issue became hot again in 1995 when a bill called for the appointment and retention elections of all appellate judges and the nonpartisan elections and retention elections for district court judges, only for the bill to die in committee. In 1997, two bills calling for the nonpartisan election of appellate judges passed the house, but were stalled in Texas Senate.

Simultaneously, three bills which allowed for the appointments of appellate judges, the nonpartisan election of district judges, and elimination of straight-ticket voting in judicial elections were similarly stalled in the Senate. Two years later, legislation which called for an appointment-retention system for appellate judges passed the Senate, but died in the House.

The latest significant reform effort came in 2003 when legislation allowing the appointment of Texas Supreme Court and Court of Criminal Appeals justices also died in the House. Since then, bills have been introduced to revise the judicial article, but most of these measures don’t even receive floor votes.

The biggest obstacle to reform is mainly political parties that don’t want reform getting in the way of the victories partisan elections provide for them.

“The Harris County Democrats, they say: "Well, we're doing fine. We don't want to change. We're winning now,"” claims Jefferson. “There are thousands of judges who breathe life into the party and they are winning, so they don't want to change it when they are winning. And Republicans, we are winning statewide, we don't want to change it."

Past failures have discouraged any major reform efforts for the time being. However, a bill, which calls for an interim study into the methods in which judicial officers are selected, was signed into law in June. The bill would require the Speaker of the House to appoint six Democrats and six Republicans to study the issue and present their findings in the 2015 session.

"Hopefully, through that discussion, through that dialogue and testimony, we can come up with hopefully a better way to elect judges here in Texas." said House Representative Justin Rodriguez (D-San Antonio) in a radio interview. "I don't know if there is a perfecter way there you, you look at other states. But certainly we can be doing better here."

Photo Credit: Texas Tribune

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