Chief Justice Seeks Resolution to Controversy
Thomas R. Phillips
Texans deserve a better method of selecting their judges. Now, voters choose nearly 1,800 judges, from Supreme Court justices to justices of the peace, in partisan elections. Usually, judges run unopposed: but the contested races are sometimes among the most expensive and combative down-ballot races in America.
Furthermore, the U.S. Department of Justice believes that electing trial judges from large multi-member districts violates the federal Voting Rights Act. The Justice Department is using its power under Section 5 of that act to block the creation of any new urban courts in Texas. Unless the state can persuade a federal court in Washington, D.C. to rule otherwise, our fastest growing areas will have no new judges to meet increased caseloads.
Judicial reform advocates generally urge one of two very different solutions. Those most concerned about minority representation tend to favor electing at least trial judges, and perhaps others, from electoral subdistricts. Under this plan, judges would be elected from one part of their judicial district but would hear cases from all over the district.
Those reformers most concerned about campaign fund raising and partisan politics generally favor some form of "merit selection" under which judges are appointed by the governor from a commission's recommended list and confirmed by voters in periodic retention elections. Most states use this system for some or all courts.
Neither electoral subdistricts nor merit selection has sufficient strength in the legislature to be offered as a constitutional amendment. Moreover, the Justice Department likely would interpose a Voting Rights Act objection to a pure merit selection system.
Against this background, Lt. Governor Bob Bullock in 1994 asked a group of state senators to meet with a few people, including four appellate judges, to discuss whether compromise is possible. Although no one has yet agreed to anything, one suggestion that has been discussed is combining merit selection for appellate judges with a multiple voting system for some trial judges in urban areas.
Multiple voting can take several forms. Common to all is that rather than running for a single court, all candidates run in one election for all available positions. Thus, with 10 benches to be filled and 20 candidates, the top 10 finishers win.
There are several ways of allocating votes in multiple voting. Under cumulative voting, each voter may cast as many votes as there are places to be filled and may give more than one vote to a single candidate. Under limited voting, each voter has fewer votes than the number of places to be filled, but may vote only once for a candidate.
The biggest problem with multiple voting is the confusion and disruption that would result if all judges in a large urban area were forced to run on one ballot. The ballot would be inordinately long and all judges would be forced to conduct expensive campaigns against each other and all challengers.
If judges who already had been elected to a full term were removed from multiple ballot, however, and placed on a retention (yes/no) ballot, several advantages might result: every judge would be voted on, not just those drawing an opponent; retention campaigns could be run with far less money, thus limiting the fund raising and political activity of most judges; partisan politics would be limited; and a shorter campaign season could result. At the same time, multiple voting would do a better job of selecting a racially and ethnically diverse bench.
Clearly, there are many problems with multiple voting: the ballot can confuse even a conscientious elector: the initial campaign can be expensive; and organized groups other than racial minorities can target and win seats. These and other problems should be fairly explored now and during any consideration of such a plan.
But the current system must be replaced. And if no one's favorite method has the political or legal support to be adopted, we must search for acceptable compromises. The efforts of the lieutenant governor and a bipartisan group of state senators to discover this middle ground should be encouraged by all who deplore the flawed procedures by which we now choose our judges.
Thomas Phillips is Chief Justice of the Supreme Court of Texas, elected as a Republican. This commentary first appeared in the Houston Post and is reprinted with Justice Phillips' permission.
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