Back in 2014, a number of groups led by the NAACP filed a federal lawsuit in Terrebonne Parish, Louisiana, alleging that the state’s “at large” system for electing judges systematically disenfranchised minority voters, in violation of the Voting Rights Act and the Fourteenth Amendment. The plaintiffs sought to replace the “at large” system with five geographic districts which, they argued, would increase the likelihood that a non-white judge would be elected.
After a lengthy pretrial process and a highly publicized bench trial, U.S. District Judge James Brady concluded in August 2017 that the “at large” system was unconstitutional, and ordered the parties to come up with an acceptable solution involving specific judicial election districts. When the parties were unable to do so, Judge Brady appointed a special master in December 2018 to draw a new district map.
Meanwhile, the defendants (essentially the State of Lousiana, through its Attorney General) appealed Judge Brady’s decision to the Fifth Circuit Court of Appeals. At the end of June, that court reversed Judge Brady, concluding that the plaintiffs had not met their burden under Thornburg v. Gingles and related Fifth Circuit precedent. Gingles requires that a party challenging an at-large voting system on behalf of a protected class of citizens demonstrate that “(1) the group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.” Continue reading “Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters”
Pennsylvania state senator Ryan Aument reintroduced legislation this week to elect the state’s appellate judges by region. The goal is to assure fairness of geographic representation within the court system:
Aument noted that a cursory review of Pennsylvania’s Superior Court and Commonwealth Court judge compliment in 2018 when this proposal was first developed shows that more than half of all the members of those courts were from only two of Pennsylvania’s 67 counties, which only represent 21% of the state’s population.
He also pointed out that five of the seven Pennsylvania Supreme Court Justices, or over two-thirds of the justices, were from Allegheny or Philadelphia counties, leaving 79% of the state’s population unrepresented on Pennsylvania’s highest court.
I understand the goal of the bill, but it misses the larger point that Pennsylvania’s judicial election structure itself is highly flawed. As I noted earlier this year, “geographic representation could be achieved much more fairly and efficiently through a commission-based appointment system than through the messy (and litigation-begging) process of drawing election districts in the legislature.”
Nevada has a long and storied history of dreadful judicial campaigns, lagging perhaps only New York and Illinois in overall election dysfunction. As one relatively recent example, three years a Las Vegas judge falsely claimed the endorsement of Dwayne “The Rock” Johnson in a badly photoshopped advertisement.
The latest questionable developments come in the form of two complaints filed with the state judicial review board by current judicial candidates, alleging that some of their opponents have violated various campaign and ethics rules. The more intriguing of the two complaints alleges that Family Court candidate Margaret Pickard posted a video to Facebook in which she sat on the bench in a courtroom in an outfit closely resembling a judicial robe — intimating, incorrectly, that she was already an incumbent judge.
Ms. Pickard did not actually don a judicial robe for her ad, but her dress is strikingly similar to a judicial garment. In any event, I will let readers decide for themselves.
A glance at the recent developments, and what to look for in the future.
It has been about seven weeks since the coronavirus pandemic began to affect state and federal courts in the United States. At this point, it seems worthwhile to set out the ways in which courts have responded, both by adjusting their own operations and by reaching out to others in the external environment. We can also begin to consider which of the current changes might stick after the pandemic subsides.
Hearings and transparency. Many state court systems have proven remarkably agile at moving in-court proceedings to telephone and videoconference platforms. Both trial and appellate courts are now holding regular hearings via Zoom (although some lawyers apparently need a reminder about appropriate dress). At least one state court has even conducted a full bench trial by Zoom. The federal court system has also made impressive strides, albeit with a bit more reluctance. In late March, the Judicial Conference of the United States authorized the Chief Judge of each federal district court to permit selected criminal hearings within the district to proceed by videoconference. Federal appellate courts have also begun conducting criminal hearings by videoconference. And the United States Supreme Court announced that after a coronavirus-induced hiatus, it would hear a handful of regularly scheduled oral arguments by telephone beginning in May. Continue reading “COVID-19 and the courts: Where we are and where we might be going”
A federal district court has delayed the trial in a challenge to Alabama’s method to selecting state appellate judges. The trial, originally scheduled to begin in August, was removed from the trial list in light of complications posed by social distancing and the coronavirus.
The Arkansas Democrat-Gazette reports:
The lawsuit alleges that the state’s method of electing appellate judges dilutes the voting strength of black voters, in violation of the federal Voting Rights Act of 1965. The seven Supreme Court justices are elected statewide to eight-year terms, while the 12 Appeals Court judges are elected from seven districts, five of which elect two members.
Attorneys for the state asked Moody in August to dismiss the case, arguing that “justice should not be administered on the basis of race, and Section 2 [of the Voting Rights Act] does not require this court to fundamentally reshape the Arkansas judiciary.”
Attorneys for the plaintiffs responded that the Act was enacted for “the broad remedial purpose of ridding the country of racial discrimination in voting,” including state judicial elections.
The delay was necessitated because social distancing practices had severely hampered the parties’ ability to conduct discovery. The judge did not foreclose certain discovery practices from continuing, however, and has ordered the parties to meet electronically and work out a time frame for handing over certain election data.
A Voting Rights Act challenge to state judicial voting districts was also raised in Louisiana back in 2014, resulting a trial verdict for the plaintiffs.
A Texas state judge has ordered a new election for the Seventh Court of Appeals, after Republican primary candidates were left off the ballot in two counties last month. The successful challenge was brought by incumbent Larry Doss, who lost the primary.
Amarillo attorney Steven Denny, who was originally the winner based on the March 3 results, said he was disappointed with the results but understood the court’s reasoning. Denny also said he is concerned about how the rescheduled date could disenfranchise voters who cast ballots in the original elections.
“Although 1,200 voters in those two counties did not get a vote on this particular race, it is entirely likely with the dismal turnout in runoff elections compounded with the COVID-19 scare that we could have fewer than 10,000 voters in the new election, which would disenfranchise the other 80,000 that voted in the original election,” Denny said.
With Wisconsin proceeding with its state primary today after an unsuccessful legal challenge to postpone in light of the COVID-19 crisis, it will be interesting to see how states and localities thread the needle of public health and election participation.
Lawrence Friedman’s recent post lays out a compelling case for achieving educational and experiential diversity on the Supreme Court. He looks to the states for guidance, noting that courts of last resort at the state level frequently feature highly qualified justices who graduated from a wide range of law schools and who feature an extensive variety of practice experience.
It’s a tantalizing analogy, which works well in some states but doesn’t translate to the federal level. Still, there are glimmers of hope for more experiential diversity in future iterations of the Supreme Court. More below. Continue reading “Experiential diversity on the Supreme Court is a pipe dream — at least for now”
Los Angeles County held its judicial primaries on March 3, and one candidate took an unusual approach to attracting voters.
Candidates must list their current (or most recent) occupation in the ballot. Mike Cummins, a retired attorney, had briefly served as a judge in a smaller county in the early 2000s, but was no longer eligible to list his occupation as a judge. So he legally changed his name to Judge Mike Cummins.
The voters were not fooled. Cummins lost overwhelmingly to his opponent, Deputy DA Emily Cole.
And for those who were following the judicial hopes of former child actor Troy Slaten, alas, he too lost handily in his LA County primary this week.
Over the past three years, his blog has tracked the litany of shocking stories coming out of Chicago area judicial elections — shocking, that is, for anywhere except Cook County. There, it seems, the sulfurous mix of identity politics, voter ignorance, and unscrupulous candidates is a way of life.
This week, the Chicago Sun-Times and Injustice Watch added another depressing data point: “sham” judicial candidates who are placed on the ballot simply to confuse voters and throw the election. Here’s how it is alleged to work: when it appears that a candidate preferred by the city’s Democratic establishment is at risk of losing a judicial race, one or more “sham” candidates will enter the race and be added to the ballot. The “sham” candidates are not real, in the sense that they expend no money on the campaign, conduct no campaign events (and often barely have a campaign website), and don’t seem sincerely interested in a judicial post. But these “sham” candidates do have something in common: names that appeal to voters’ identity politics (which is Chicago, translates mostly to feminine -sounding first names and Irish surnames). The expectation is that voters, who have done no research on the judicial candidates on the ballot, will simply vote for those who sound like Irish-American women. (And there is proof that this expectation plays out in real life.) The “sham” candidates confuse enough voters to draw votes away from the non-establishment candidate, allowing the establishment candidate to prevail.
It’s doesn’t always work. The article, for example, relates how the presence of alleged “sham” candidate Bonnie McGrath in 2016 was not enough to prevent the victory of non-establishment candidate Carol Gallagher. And the alleged “sham” candidates have protested that despite their utter lack of campaign activity, their desire to be judges is sincere. But let’s be honest: the entire process is still shameful — or at least it should be, if the party bosses behind this ruse were capable of shame.
That is the question I address in my latest guest post at the IAALS Blog. Check it out!