As Tuesday’s primary election date approaches, voters in Harris County are already going to the polls to pick a slate of candidates for November’s general election. If you’re voting in the GOP primary, you’ll see some familiar names on the first page or two of the ballot. But as you work your way down through the congressional and statewide offices, you hit the first snag: six statewide judicial offices, only two of which are contested. That means that four of the six give the voters no options. The other two present voters with a “choice,” but is it an informed choice? For a few, yes, mainly those with a vital interest in the Texas Supreme Court or Court of Criminal Appeals, such as the lawyers and law firms who practice in those courts. But for the vast majority of voters—as voter surveys have repeatedly shown—choosing between “Evan Young” and “David Schenk” or “Scott Walker” and “Clint Morgan” is an exercise at best in guesswork and at worst in who has the better ballot name. As for the best qualified candidate, who knows?
If you get past those (or if you don’t vote in the statewide court races because they’re either unopposed or you have no idea whom to vote for), you come to page three of your seven-page ballot. Beginning with the intermediate courts of appeals (those courts do what now?), you have two nominees for the 1st District and two for the 14th (why are there twoof these?), all of whom are unopposed. So, a retention election again. After that, the next 37 offices are for state civil, criminal, and family district courts, only three of which are contested. What are the chances that an average voter knows anything about any of these candidates when even lawyers don’t know them all? Here is where you often see a dramatic decline in the number of voters sticking to the ballot, but if you’re one of those who does, the next 22 offices are the civil, criminal, and probate county courts (why 22 more courts after I just voted for 37?). None of these are contested.
If you are steadfast and make it through to page 6, where the GOP referenda are located, you will have, in most cases, picked 69 faceless names (plus one justice of the peace, whatever that is) that purport to be qualified to hold the power of decision over your liberty, property, and even your life. Is this really the way to pick these people? Is it even “democratic”?
Proponents of the partisan election of judges insist that Texans will never give up the “right to vote for their judges,” even though they generally have no idea who they are and have only the party label to guide their “vote.” So what proponents really mean is that Texans will never give up a “right” that exists almost entirely in the abstract. As we see from the Harris County ballot, only five of 67—about 7.5%–have an actual contest, but a contest between virtually unknown quantities in a small handful of cases merely reinforces the abstract nature of the exercise. The same holds true in the general election, where the abstraction becomes embodied in the label “R” or “D.” If we’ve learned anything in 35 years of TCJL’s existence, it is that “R” or “D” tells you far more about how the state leans at any given time than it does about a judicial candidate’s qualifications or how that candidate might rule in your case.
And it’s your case that matters, isn’t it? If a voter, who by God wants to vote on this abstract thing called a “judge” come hell or high water, gets haled into a courtroom, he or she does not get to pick the judge for whom he or she “voted.” A party in a legal proceeding is not a “constituent,” but a person who has become involved in something serious that could result in the loss of a business, a marriage, a child, a property, a living, or—God forbid—a life. Now if you’re in that situation, we would submit that your abstract right to vote for judges means absolutely nothing, and maybe worse than nothing. In fact, in order to maintain it you may well have traded away your equal, if not superior, right to a fair, impartial, and well qualified person to hear your case and make the right decision. And if that decision is not fair and impartial, or if you are faced with getting justice from one of those faceless names on the ballot who got elected without any particular background or experience relevant to your case, what is your “right to elect your judges” worth now? Just as bad—and this happens more frequently than we like to admit—you may get a “judge” who has a hard time making any decision at all, leaving you hanging in legal limbo for months and years with all the emotional stress that endless delay in settling your life entails.
TCJL has since its inception advocated for reforming the judicial selection process to give voters a far more meaningfulrole in selecting judges and justices who are fair, impartial, and qualified to hear their cases than they have under the current system. As an organization vitally interested in the operation of the courts and the impartial and efficient administration of justice, we have long sought to educate voters as best we can about the impact of the judiciary on their lives and the absolute necessity of casting informed votes on judicial candidates. Through the TCJL PAC, we have also contributed to many judicial candidates who share those ideals. But even if TCJL, as others who play the partisan election game, may be perceived in some form or fashion to “benefit” from the current broken system, we will be more than happy to give it up to see that each Texan who enters a Texas courtroom gets the very best judge that our state can offer. After all, courts exist for the benefit of the citizens who need them, not for the benefit of lawyers, judges, political parties, or organizations like us.
We believe—and voter opinion surveys have consistently confirmed it over several decades (we’re not talking about the party referenda that load the question to get the answer the parties want)—that given the opportunity to vote on a better way to select judges, Texans will do so. If those who continue to block reform really think that voters won’t go for it under any circumstances, what’s the harm in asking them in a constitutional amendment election? We seem to have no problem letting the people vote on far less consequential issues than their entitlement to a highly qualified and impartial judiciary. Perhaps the time has come to trust them with a decision that rightfully belongs to them, not to intermediaries with other interests and concerns.
And if you’re interested, you can see the Harris County GOP primary ballot below. If you vote there, good luck and hope for the best, Some of them (or given the recent history of partisan sweeps, all of them) might end up being a very big part of somebody’s life.