Cook County attorney steals a page from Trump’s playbook

Back in November, Illinois attorney Frank DiFranco ran for a local judicial seat in Cook County. He lost the election to incumbent Patricia Fallon. But that isn’t stopping DiFranco from trying to change the election outcome in court. The Chicago Tribune reports:

The federal lawsuit, which names the clerk’s office, Cook County Clerk Karen Yarbrough, the Illinois State Board of Elections and Fallon as defendants, alleges that the clerk’s office continued counting ballots after the Nov. 17 state deadline and that a “great majority” of these ballots favored his opponent.

“The clerk’s motivation for including votes received after Nov. 17 to the vote tally in the 12th Judicial Subcircuit was to help the Democratic candidate win,” DiFranco’s lawsuit alleges.

In his complaint, DiFranco also accuses the clerk’s office of “altering” the postmarks on vote-by-mail envelopes to make them “appear to have been postmarked on or before Nov. 3,” and claims the clerk’s office counted ballots that had already been counted, resulting in higher vote totals.

Fallon in November attributed her win to the large number of mail-in votes, which were still being counted when DiFranco appeared to be leading in the race.

It’s perfectly fine for judicial candidates, like any candidate, to vigorously monitor election results, including asking for recounts in close races. But when votes have been certified and there is little real evidence of wrongdoing (as opposed to naked allegations), relitigating elections in court can only undermine the legitimacy of the judiciary and the democratic process.

Texas commission recommends move to nonpartisan judicial elections

The fifteen-member Texas Commission on Judicial Selection has issued a formal report recommending that the state move away from partisan judicial elections in favor of nonpartisan elections. A bar majority of the commission members — eight — supported the change. But since most dissenters are state legislators, it seems unlikely that the commission’s recommendations will be followed anytime soon.

The Texas Tribune has an excellent summary and analysis here. A snippet:

“I do not believe the citizens, my constituents of the state of Texas, want this right taken away from them, and I’m not gonna be in a position or be the one who does that,” state Sen. Joan Huffman, R-Houston, said at the committee’s final meeting in December. Huffman, who served as a trial judge in Houston, and said the experience of campaigning for the bench had been valuable.

The counterargument to that came most persuasively from former judges, who have been pointing out for years that while Texans say they cherish their ability to elect judges, they typically have little idea who they’re choosing between.

In Houston, for example, there are dozens of judges on the ballot, lists long enough that even top local attorneys struggle to familiarize themselves with every candidate.

In the absence of better information, voters often turn to the demographic clues they can glean from the ballot itself. In this year’s Democratic judicial primaries, for example, female candidates got more votes than male candidates in every gender-split race, about 30. And in Republican primaries, judicial candidates with Hispanic-sounding surnames have often fared poorly, owing, experts say, to a largely white electorate.

“Judges can be elected even though no one knows who they are,” pointed out Wallace Jefferson, who was the first Black chief justice of the Texas Supreme Court. Instead of vetting the qualifications of the judicial hopefuls they are choosing between, he said, voters often choose based on party affiliation, “or they vote based on the sound of your name.”

 

North Carolina election finally comes to a close as Newby sworn in as Chief Justice

The hotly contested election for Chief Justice of North Carolina, which went through several recounts and concluded with challenger Paul Newby winning by 401 votes, is now formally in the books. Newby was sworn in as the state’s 30th chief justice on Friday.

North Carolina Chief Justice election still undecided

More than a month after Election Day, the race to be Chief Justice of the North Carolina Supreme Court remains unsettled. Challenger Paul Newby won the original count over current Chief Justice Cheri Beasley by 406 votes. That lead dipped slightly after a machine recount, to 401 votes. Beasley then requested a manual recount in selected precincts, which is ongoing (and scheduled to be completed by December 14).

But the ancillary fights continue. Beasley has filed 87 protests across the state, conending that thousands of ballots were improperly disqualified. Newby has filed 14 protests of his own, arguing that hundreds of late-postmarked or otherwise invalid ballots were improperly counted.

After this episode, whoever wins — and it seems likely to be Newby — public confidence in the North Carolina Supreme Court as a fair and impartial body is almost certain to decline.

Electoral chickens come home to roost in North Carolina courts

Back in 2017, the North Carolina legislature repeatedly battled Governor Roy Cooper over the size and composition of the state’s courts. The Republican-controlled legislature passed a bill which would return the state to partisan judicial elections, a move criticized both by Democrat Cooper and by the state’s then-Chief Justice, Mark Martin (who favored a merit selection plan). Cooper vetoed the bill, but the legislature overrode the veto. The legislature and Governor also fought over the size of the state’s Court of Appeals. Later, a series of undignified fights over the fate of individual judges and judicial candidates cast the state’s third branch in a political light that it never would have sought for itself.

The legislature’s changes seem to have had some of their desired partisan effect for 2020. As noted last week, Republican candidates at first appeared to sweep the state’s judicial races. Now the highest profile race, for Chief Justice, appears headed for a recount, with current Chief Justice Cheri Beasley (a Democrat) and current Associate Justice Paul Newby (a Republican) separated by just a few thousand votes.

There are also some cascade effects. Newby’s choice to run for Chief Justice meant that his Associate Justice seat on the court became vacant, and that open seat was sought by two Court of Appeals Judges, Lucy Inman and Phil Berger Jr. Berger, the Republican, won the Supreme Court seat, and his now-open seat on the Court of Appeals will be filled by Governor Cooper. In the end, the seven-member Supreme Court will still have a Democratic majority — either four (if Newby wins the Chief Justiceship) or five (if Beasley retains it).

So at the end of the day, Republicans may make some inroads into the state judiciary, but at the cost of further politicizing the third branch. Courts will have to work harder than ever to build public trust, not because of the quality of their decisions, but because legislators have seen fit to brand them with a (D) or an (R).

Until partisans on both sides end their efforts to undermine the courts in this way, I don’t want to hear a damn thing about declining judicial legitimacy. It is a frontal assault on a co-equal branch of government, nothing less.

 

Election 2020: a quick state court roundup

Even with all eyes trained on the Presidential election, voters in more than thirty states also cast ballots this week for (or against) state judges. Here are some of the preliminary stories coming out of Election Day:

In both Dallas County and Harris County, Texas, Democrats swept the contested judicial races, making it yet another election cycle in which a single party has taken control of the state judiciary in Texas’s two largest metro areas. In North Carolina, a party sweep of another type took place, with Republican judicial candidates winning each of their judicial races. Neither case should be seen as good news. Party sweeps strip the courts of critical judicial experience, replacing it only with a partisan fetish that a judge with an (R) or a (D) next to his name will rule in a certain way. If the judges are fair, the partisans are more often than not disappointed by some case outcomes. And if the judges give the partisans what they want every time, the integrity of the judiciary is compromised. (Just a thought: perhaps it is finally time to eliminate partisan judicial elections altogether.)

In Illinois, for the first time, a sitting supreme court justice lost his retention bid. A little less than 57% of voters chose to retain Justice Thomas Kilbride, but under the state’s unique rules, at least 60% of voters needed to favor retention for Kilbride to keep his seat. Thus we have the unusual circumstance in which a judge whom most voters wanted to retain nevertheless will have to leave the bench. (The unusual nature of Illinois’s judicial retention system has an equally unusual history, which I might try to unpack in a future blog post.)

In Tampa, Florida, a state trial judge who lost his primary race in August pushed the state supreme court not to certify this week’s judicial election results. The judge is arguing that the current state law allows judicial races to be settled in the primaries, whereas the state constitution requires that they be decided during the November general election.

And in Arizona (where ballots are still being counted as of this writing), the Maricopa County Democratic Party campaigned against the retention of two state trial judges, including the only Native American judge on the Maricopa County Superior Court. Both targeted judges were deemed by the state’s independent Commission on Judicial Performance Review to have met performance standards. Unlike Illinois, a simple majority in favor of retention is enough to keep the judges on the bench.

Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters

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”

A renewed effort to create regional judicial elections in Pennsylvania

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 judicial candidate accused of effectively impersonating a sitting judge

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.