Judge to appoint special master to assist in remedy phase of Louisiana judicial election case

Almost five years ago, a local branch of the NAACP in Terrebonne Parish, Louisiana, sued state officials in federal court, arguing that the state’s “at-large” system for electing judges systematically disenfranchised minority voters. After a trial in 2017, the federal district court agreed with the plaintiffs that the existing election scheme was unconstitutional. But the parties could not agree on the appropriate remedy, so the judge has asked both sides to suggest candidates for a special master, who will assist the judge in crafting an appropriate remedy.

“The parties didn’t agree on a remedy and the Legislature didn’t pass a remedy, so now it’s the court’s obligation to come up with a remedy,” [NAACP attorney Leah] Aden said on Saturday. “The court isn’t an expert in drawing maps. Judge Dick wants to do everything by the book, so she’s going to hire someone who’s familiar with drawing maps to aid her as an expert to evaluate the maps that we put up and potentially draw their own map. This person is basically a technical expert.”

A federal judge gave the state Legislature the first opportunity to remedy Terrebonne’s voting system, but the only proposed bill during the 2018 session died in committee.

This has been a fascinating case for observing how one sovereign’s judiciary (the federal courts) addresses fundamental issues pertaining to another (a state court system). It will be equally interesting to see how the final resolution plays out.

No more federal judicial confirmations this year

The Hill reports: Feeling heat from the left, Dems reject judges deal.

A Senate Democratic aide said Wednesday that [Chuck] Schumer would not agree to approve the final slate of judicial nominees as the Senate prepares to wrap up its work for the year.

Progressives skewered Schumer for agreeing to two previous deals this year, one in August and the other in October, when he signed off on a group of court picks in exchange for letting vulnerable incumbents head back to their home states to campaign before the November midterm election.

Current number of vacancies in the federal courts: 143.

 

New developments in lawsuits concerning judicial elections in Alabama and Arkansas

Two lawsuits involving judicial elections–one each in Alabama and Arkansas–were the subject of new developments this past week.

In Alabama, the NAACP and Lawyers Committee for Civil Rights filed a federal lawsuit alleging that the state’s method of electing state appellate judges discriminates against African-American voters. The lawsuit claims that the absence of black judges on any state appellate court is the result of discriminatory vote dilution tactics. The state moved to dismiss the case on the grounds of sovereign immunity, but U.S. District Judge W. Keith Watkins denied the motion to dismiss, and set the case for a bench trial. Attorneys for the state have now taken their case to the Eleventh Circuit Court of Appeals, asking that court to overturn Judge Watkins’s refusal to dismiss the case.

The Arkansas case involved a controversial attack ad against incumbent state judge Courtney Goodson, who was seeking reelection. The Judicial Crisis Network, a conservative group, had been running the ad on several stations in northwest Arkansas when a county judge barred its further broadcast in May. The corporate owner of a Little Rock television station appealed the injunction. But last week, the state court of appeals ruled that the issue was now moot, since Justice Goodson has won reelection, and the ad was no longer airing. The issue may be moot for now, but the larger issues–prior restraint of political speech, the influence of “dark money” in elections, and the wisdom of electing judges in any event–remain.

It worked! Chicago lawyer who changed his name to sound more Irish is finally elected as a judge

This blog has followed the story of Phillip Spiwack, a Chicago-area lawyer who legally changed his name in 2012 to Shannon O’Malley. The reason for the change: he was planning to run for judge in Cook County, and recognized the stubborn reality that having an Irish woman’s name would be a valuable commodity at the polls.

Spiwack lost his first race in 2010 while using his original name. The next year, the DePaul Law Review published a study showing that Cook County judicial candidates with Irish and female names tended to have an advantage in judicial elections. Spiwack changed his name to Shannon O’Malley shortly thereafter, and then deliberately sat out judicial races for the next several cycles to circumvent a state law requiring candidates who undergo a name change within three years of an election to disclose their old names on the ballot.

The plan worked. O’Malley won his election last week, even though he refused to submit his qualifications to any local bar associations and therefore did not receive any bar recommendations.

O’Malley may or may not prove to be a good judge. But this whole episode speaks poorly of the low-information judicial voters in Chicago.

Rural Arizonans choose merit selection

Arizona’s constitution requires that counties with a population over 250,000 must select their superior court judges using a merit selection model: judges are appointed by the governor based upon recommendations from a nonpartisan nominating commission, and then subject to periodic retention elections. Smaller counties, by contrast, typically elect their judges in contested elections.

But citizens in these smaller population counties may opt into the merit selection process by approving the change during a general election. And that is exactly what Coconino County voters did last week. It marks the first time that a rural Arizona county has chosen merit selection over the standard, party-affiliated election system. Coconino County Judge Dan Slayton provides more detail on the change at the IAALS Blog.

I applaud the move!

Post-election judicial roundup

Many states had judges and issues affecting the judiciary on their ballots this week. Here are some of the more noteworthy outcomes from several western states:

In California, state supreme court Associate Justice Carol Corrigan was retained by voters by about a 2-1 margin. Corrigan had been the target of an anti-retention campaign by several LGBT groups, who took issue with her dissent in the state supreme court’s decision legalizing same-sex marriage in 2008. Happily, most voters (regardless of how they felt about that case) properly viewed that opinion in the context of hundreds that Justice Corrigan has issued over her judicial career.

In Alaska, Judge Michael Corey was not nearly as lucky. In a situation reminiscent of the mob that removed Judge Aaron Persky in California earlier this year, Judge Corey was targeted for non-retention by a group calling itself “No More Free Passes.” The group took issue with Judge Corey’s decision to approve a “no jail time” plea deal for a man accused of strangling a woman until she fell unconscious, and then masturbating on her. The problem for the prosecutors and for Judge Corey was that this sickening act does not qualify as a sex crime under Alaska law. Consistent with existing law, the district attorney proposed a plea deal that allowed the defendant to walk away without jail time, and Judge Corey approved it.

It’s not hard to see why this decision would raise anger about the state of the law, and mobilize people to change it. But instead, Judge Corey became the target, and “No More Free Passes” ran a successful social media campaign to prevent his retention. This despite his excellent performance review (which was issued before the plea deal was approved).

The leader of “No More Free Passes” admitted that its removal of Judge Corey was largely symbolic, and that its main focus was on changing the law. In a Facebook post, she stated that the group “will no longer be discussing Mr. Corey…. We wish him nothing but the best in his future.” That is cold comfort for an excellent judge whose only fault was following the law. Congratulations to “No More Free Passes” on destroying a judge’s career purely as an act of symbolism. I hope you sleep well at night.

In Colorado, voters narrowly defeated Amendment W, which would have streamlined the judicial retention ballot in future elections. A majority of voters supported the amendment, but “yes” votes did not meet the 55% supermajority threshold required for passage.

Out of more than 100 judges on the Colorado retention ballot, two were not retained by voters. Both judges had received poor performance evaluations from Colorado’s official JPE program.  Several other judges were targeted by anti-retention groups or individuals, but  had received strong performance evaluations and were comfortably retained by voters.

In New Mexico, which uses a mixed judicial selection system (judges must initially run for their seats in contested elections, and afterward face retention), voters radically overhauled the state court of appeals. Four new judges were elected–all women, and all Democrats–giving women eight of the ten seats on the court. Another court of appeals judge, Michael Vigil, left his seat to run for the state supreme court, and handily defeated incumbent Gary Clingman. Vigil’s seat will be filled by gubernatorial appointment. The only male judge left on the court, Judge J. Miles Hanisee, was retained by a comfortable margin.

New Mexico voters were also asked to “clear the bench” of judges by an anonymous group starting early this year. While the movement had little impact on the state’s appellate and district courts, four Metropolitan Court judges failed to reach the 57% threshold for retention. Of the four who were not retained, two were not recommended for retention by the state’s judicial performance evaluation commission. Two other judges who likewise were not recommended for retention just squeaked over the retention threshold, with 57.15% and 57.02% of the vote, respectively.

In Arizona, state supreme court Justice Clint Bollick was comfortably retained by voters despite an anti-retention effort funded by the National Education Association.

And in Texas, one of only two states that permits voters to simply vote a straight party ticket, a Democratic wave unseated nineteen incumbent Republican judges on the state’s  intermediate appellate courts. This party sweep (which is not uncommon in Texas) will lead to two related consequences for the appellate courts. First, a number of highly experienced judges are now out of a job. Second, the learning curve for the new judges will take time. I do not envy anyone with cases pending in those courts over the next several months, as an entirely new judiciary gets it feet wet.

UPDATE 11/16/18: The post has been revised to reflect the Colorado supermajority requirement for Amendment W.

 

Colorado considers changes to judicial retention ballot

This November, Coloradans will vote on Amendment W, a proposal to streamline the state’s ballot for judicial retention elections.

Currently, for each state supreme court justice facing retention, the ballot contains the question, “Shall Justice ___ of the Supreme Court be retained?” For judges on other courts, the ballot takes a similar form: “Shall Judge ____ of the ___ Court be retained?” If passed, Amendment W would allow county clerks to ask a single retention question applicable to all judges on the ballot: “Shall the following Justices (Judges) of the Supreme (or other) Court be retained in office?” The judges seeking retention would then be listed by name, with an option for Yes or No next to each name.

This has been billed as a cleanup measure which would shorten ballots, saving counties money and increasing voter participation in down-ballot judicial retention elections. It garnered bipartisan support in the state legislature, and has not been subject to any organized opposition. I suspect it will pass easily.

But I also wonder if there will be unintended consequences flowing from the shorter ballot. Partisan efforts to remove judges for specific decisions are aimed mostly at appellate judges, and count on voters to be ignorant about the court system. The shorter ballot exacerbates voter ignorance, by eliminating one more piece of information to help voters distinguish among the judges on the ballot. Put differently, without court designations on the ballot, some voters might not remember which judge they think they should remove, and so might just vote to remove them all.

This scenario is not likely, but neither is it unimaginable. A shorter ballot may be good for election administration, but it also presents more work for the judiciary, the bar, and the judicial performance evaluation committees in their efforts to educate the public about the real work of the courts.