The most pointless judicial election ever?

One candidate was declared ineligible. The votes were counted anyway. But to what end?

A remarkable story from Alabama. Last fall, prosecutor Linda Hall won the Democratic primary for a seat on the Jefferson County Circuit Court located in Birmingham. But before the general election, her primary opponent challenged her victory, alleging that Hall did not meet the state’s requirement that judicial candidates live in the circuit for at least 12 months before the election.

The court agreed, and held that Hall was ineligible to run in the general election. But the ballots had already been printed, so the primary challenger was left out in the cold. Moreover, the court declared that the votes in the general election must still be counted. Despite her ineligiblity, Hall handily defeated the Republican incumbent, Teresa Pulliam, by 16,000 votes in November.

Unsurprisingly, Hall’s electoral victory brought a new round of litigation, this time by two Jefferson County voters who challenged Hall’s fulfillment of the residency requirement. In a trial in late 2018, Hall testified that over the previous 12 months she had lived in four different apartments in the Birmingham area, as well as a number of extended stay hotels in St. Louis, Missouri. Hall explained that she had to keep moving apartments due to problems with mold, foul odors, and smoking neighbors. By early October — just weeks before the general election — she landed in her final apartment, which was actually located within Jefferson County.

After trial, Hall was again declared ineligible for the judgeship, and enjoined from taking the oath of office. This past week, the Alabama Supreme Court affirmed that decision without opinion.

So, to recap: a judicial candidate who was declared ineligible for office before the general election was nevertheless elected, and later barred from taking office. Three different courts had to get involved. And at the end of the day, the people of Birmigham County had an unfilled judicial seat. (In another twist, Hall’s opponent, Judge Pulliam, was quickly appointed to a different seat on a criminal court. So losing an election evidently isn’t much of a career killer.)

I suspect that there is much more behind this story, at least as to the motivations of those charged with putting judges on the Alabama bench. It isn’t much of a surprise that Judge Pulliam, a Republican, would be reappointed to another seat by the state’s Republican governor. Likewise, I suspect that Ms. Hall’s electoral victory was a product of party and identity politics. Hall is an African-American woman running as a Democrat in a city that is more than 70% African-American and which regularly elects Democrats to office. It is well-established that many (perhaps most) judicial voters have little knowledge of the candidates before them, and accordingly look for low-salience cues like party affiliation, race, gender, or last name to aid their decisions. If the system worked well, voters would have recognized that a vote for Hall was meaningless. But they voted for her in droves.

It may well be that given Alabama’s dark history of racial inequality, a pure appointment process for judges may not create sufficient public trust in the judiciary. Allowing communities to choose their own judges through elections may therefore be a necessary accommodation. But if we are to put judicial candidates before the voters, at least those candidates should be minimally qualified, and at least the voters should be minimally discerning.

 

 

Final arguments conclude in NAACP’s challenge to Alabama’s judicial elections

The slow-moving federal court challenge to Alabama’s method of electing its appellate judges reached another milestone on Wednesday, when the parties gave their final arguments in a case filed back in 2016.

The Alabama State Conference of the NAACP is arguing that the Alabama’s method of at-large voting for state appellate courts impermissibly dilutes the votes of African-American voters, in violation of the federal Voting Rights Act. As evidence, the plaintiffs point to the fact that no black candidate has ever been elected to the state’s civil or criminal appellate courts, and only two have been elected to the state supreme court. The state has countered that standard party politics, not race, provides the best explanation for the election outcomes.

A federal judge denied the state’s motion to dismiss the case, and held a bench trial last November. After a lengthy delay brought on by the state’s appeal to the Eleventh Circuit on the denial of the motion to dismiss, the trial court held oral arguments to conclude the bench trial this week.

There is no indication when the judge will issue his decision. But whatever his final ruling, this case is a nice example of how life tenure shields him from some of the inevitable political fallout that will result from any decision he makes. If only his counterparts on the state bench enjoyed that same freedom from political pressure. But as both sides in the case made clear on Wednesday, viewing judges as politicians seems to be par for the course in Alabama.

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.

Sitting Alabama justices endorse candidate in upcoming partisan primary

Here is something I have never seen before. Seven sitting and former justices of the Alabama Supreme Court publicly endorsed Chief Justice Lyn Stuart in this week’s upcoming Republican primary. Stuart replaced former Chief Justice Roy Moore after he was suspended in 2016; she is now seeking a full term.

There are a number of unusual circumstances here. Stuart stepped into a difficult position after the Moore suspension, and obviously won the support of her colleagues. And her opponent, Associate Justice Tom Parker, is a close associate of Moore. It is likely good politics to place the more moderate Stuart in the partisan general election against a Democratic challenger. Parker seems to be a mini-Moore when it comes to inciting controversy.

But this is still a highly unusual move. Judges generally stay away from political endorsements or similar activity, for fear of comprising their legitimacy as nonpartisan arbiters of the law. Moreover, the the sitting justices here chose between two colleagues on the bench. That will make for an awkward summer around the courthouse. And what if the Democratic candidate wins the general election? (Unlikely in Alabama, but we know it can happen.)

Partisan elections places judges and judicial candidates in countless compromising positions. Here is another piece of evidence to that effect.

White House withdraws two federal district court nominees

Two of President Trump’s nominees for federal district judgeships have been withdrawn.  Brett Talley, a nominee for the bench in Alabama, and Jeff Mateer, nominated for the bench in Texas, will not advance.

Talley drew particular criticism over the last several months for his personal conflicts and clear lack of qualifications. The 36-year-old Justice Department attorney has only practiced law for three years and has never tried a case — a monumental shortcoming for a trial court nominee. Talley also failed to disclose that he was married to a White House lawyer, or that he had previously made controversial statements about death row inmates. (Of less direct importance, but no less head-scratching, was the additional revelation that Talley is a “ghost hunter.”) The ABA rated him “unqualified.”

Separately, Mateer came under fire for his statements on homosexuality, same-sex marriage, and transgender children.

The withdrawals come on the heels of Senator Chuck Grassley’s recommendation that the White House “reconsider” both nominations.

On paying disgraced judges

Roy Moore, the disgraced judge turned disgraceful Senate candidate, received good news recently when the Retirement Systems of Alabama (RSA) Board approved his $135,000 annual pension, representing 75% of his annual salary before he was suspended from his duties as Alabama Chief Justice in September 2016.  The RSA Board indicated that it has no legal authority to reject or change a judge’s pension.  Moore qualified for the pension under state law due to his previous years of service and age at the time he was suspended.

Meanwhile in Washington, Senator Charles Grassley recalled ex-judge Thomas Porteous’s efforts to fleece taxpayers with his own retirement pension. Porteous was impeached and removed from office in 2010 for taking bribes and engaging in a variety of corrupt acts. Shortly before he was impeached, Porteous tried to claim disability retirement in order to secure a lifetime annual salary of nearly $175,000.

No one could be blamed for wanting to deny retirement payments to judges whose conduct in office was reprehensible, as was the case (in different ways) for Moore and Porteous. The counterargument is that reprehensible conduct cannot be clearly defined, and the ability to remove benefits will become a weapon against judicial independence. Where and how should we draw the line?

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Former federal judge to run for U.S. Senate

Russell Fagg, who recently retired from a life-appointed position as a United States District Judge in Montana, announced yesterday that he will seek the Republican nomination for the U.S. Senate from that state. The winner will oppose incumbent Jon Tester in 2018.

Judge Fagg is hardly the first jurist to seek a position in another branch of government — former Alabama Chief Justice Roy Moore recently won the Republican Senate nomination in that state, and another former Alabama Chief Justice, Sue Bell Cobb, is running for governor. In the other direction, many Supreme Court Justices (among them John Jay, William Howard Taft, Hugo Black, and Sandra Day O’Connor) came to the bench after extensive careers in the executive and/or legislative branches.

Judge Fagg is touting his judicial experience — more than 25,000 cases during a 22-year career. And there is something to be said for having a jurist’s mindset in the legislature — one that is capable of coolly and dispassionately evaluating complicated matters. Of course, having that mindset does not mean that one will use it, and the Senate has not exactly been a paragon of reasoned deliberation in recent years. But it will be interesting to see whether — and how — Montana voters account for Judge Fagg’s third branch experience as the race heats up.