States that elect judges are heir to a populist tradition dating back to the Jacksonian era. In the spectrum between independence and accountability, these states emphasize accountability. Systems vary from state to state, and even within states there may be geographic diversity or different selection systems for different levels of courts. Elections can be partisan or non-partisan, contested, or, as in merit-selection states, retention. Some states have dabbled in public financing of judicial elections. Reformers are most critical of contested partisan elections. Those are the elections where the most money is spent, the nastiest ads aired, and the dignity of the judicial office most often impugned. One factor that often goes unnoticed, perhaps because of its unquestioned status in a partisan election, is the ballot itself.
Critics of partisan judicial elections decry the very concept of attaching a party label to a judicial candidate. (1) The argument certainly has its merits. However, even if a voter blindly checks the box for every Democrat (for example) on the ballot, at least he has to confront the name and notice that the candidate is running for a judgeship. Some sort of internal evaluation--perhaps memory recall of campaign literature or radio advertisements--remotely informs the choice. Nevertheless, in a few states, the voter need not even do that; he literally need only check a single box and be out of the voting booth in thirty seconds or less. Straight-ticket voting (2) virtually nullifies the legitimacy of judicial selection in partisan election states. The low informational nature of these races makes straight-ticket voting attractive to the uninformed voter. Parties in states that allow the practice seize the opportunity to take advantage of the uninformed voter and urge the single checkmark.
If the logic of an elected judiciary is that it is more accountable to the public it serves, then straight-ticket voting directly contravenes that goal by placing all the power in the selection process in the hands of party leaders. Not only are minority party candidates handicapped in such a system, so are majority party candidates who fail to win the favor of party leadership. Judicial candidates and judges are indebted to leadership for their patronage and nomination, despite the fact that the judiciary does not align with conventional party platforms. Ultimately, uninformed voting translates to facile voting, and influence translates to control. The judges who win in straight ticket races are likely neither accountable to the people nor independent of the party that elevated them.
At present, sixteen states' ballots have a straight ticket option. (3) Of those, three select their judges through partisan elections and require that their judges participate in regular general elections, not retention elections: Alabama, Texas, and West Virginia. (4) As such, these three are the states in which voters are most likely to rely on straight-party voting in casting their votes in judicial elections.
Texas stands as a prime example of a state where politics, and particularly straight-ticket voting, has long had a visible influence in the election of judges. As the current Chief Justice, Wallace Jefferson, observed in connection with his own election:
My success depended primarily on a straight-ticket partisan vote.... Even if I had never appeared in court, lost every endorsement and fared poorly in polls that assess qualifications, I would still have won in Texas. The state voted for McCain, and I was the down-ballot beneficiary. Currently, merit matters little in judicial elections. We close our eyes and vote for judges based on party affiliation even though a party label does not ensure a judiciary committed to the rule of law. (5)
Former Chief Justice, Tom Phillips, echoed the point:
Most of us [judges] feel like judges should not run as Republicans or Democrats, which ... in my opinion has been a terrible blow for the stability of our judiciary. As the state has changed from one party to the other over the last decade, over 200 of our state trial and appellate judges have been defeated in general elections. In almost every case for no other reason that I can identify other than they were running on the party that was not popular. (6)
While no case has reached the U.S. Supreme Court questioning Texas' straight-ticket voting system for its judges, it may not be an accident that the high court's two most recent relevant cases involved West Virginia, which has a straight-ticket option on its ballot, and New York, where although there is no straight-ticket option, voter behavior is typically lock-step in voting straight party line (downstate, Democratic, and upstate, Republican).
In the pages that follow, we examine straight-ticket voting, the particularly pernicious role it plays with respect to voter choice, and its impact on both judicial independence and accountability. We then consider the probable outcome of a constitutional challenge to Texas straight-ticket voting--we think it would likely fail--and suggest two partial ways out of the thicket, one legislative and one administrative.
I. THE EFFECT OF STRAIGHT-TICKET VOTING ON INDEPENDENCE AND ACCOUNTABILITY
Independence and accountability are the central competing ideals in judicial selection; both qualities are fundamental to a judiciary's legitimacy. A state's decision to elect its judiciary necessarily prioritizes accountability above independence, but some semblance of the latter must remain for the sake of judicial integrity. The electoral context, particularly the partisan variety, automatically ushers in politics. The influence and financial strength of the major parties and complementary interest groups have irrevocably shaped the tone and substance of judicial elections around the country. The dominance of parties is exaggerated in states where straight ticket voting is an option, and judicial independence suffers. Additionally, and contrary to the intent of judicial elections, straight-ticket voting renders meaningful judicial accountability highly unlikely.
A. Party Influence and Judicial Independence
Political parties and partisan interests have moved steadily into the judicial election field as judicial independence gradually erodes. There is evidence to suggest that parties are overtly nationalizing state-level judicial elections. Though still in a nascent stage, the Democratic Judicial Campaign Committee, formed in 2007, has an explicitly partisan goal: elect Democratic judges to state courts. (7) No corresponding Republican effort currently exists, but this may be due to the lack of a need for one, given the funding ability and staunchly Republican allegiances of the various chambers of commerce throughout the country (the U.S. Chamber and its Ohio affiliates spent $4.4 million in 2000, while the U.S. Chamber and the Illinois Republican Party teamed up to spend $1.9 million in 2004). (8)
To be sure, political parties are very interested in state judicial elections. The ramifications of the deep pockets of parties are largest in states where partisan elections occur. From 2000 to 2009, the Alabama Democratic Party spent just under $5.5 million on judicial elections. (9) The Illinois Democratic and Republican parties were the top spenders in their state over the past decade ($3.7 and $1.9 million, respectively). (10) The Texas Democratic Party spent just over $900,000 on television advertisements for the 2008 state supreme court elections alone (though all three races were lost). (11) Money equals power and, more often than not, money equals votes. In judicial elections where a majority of the populace may not even be aware the race exists, an expensive primetime television or other media buy in a major market may make all the difference, and he or she with the wealthier friends, or party bosses, can afford it.
With that power comes a chilling effect; whether or not their actual decision-making is affected in individual cases, the specter lingers in the popular imagination that judges decide cases the way their political patrons want them decided, at the peril of their jobs. This is the antithesis of judicial independence. While polling shows that the threat to the integrity and impartiality of legal opinions strikes a large number of Americans as repugnant and anathema to the rule of law, (12) voters in elected judge states are fairly likely to hold their noses, especially in states where straight-ticket voting is available. Party allegiance and convenience trump concerns over judicial independence. (13) Partisan dominance of every aspect of the judicial selection process in those states with straight-ticket voting (14)--from the hand picking of candidates to the dissemination of propaganda--corrupts the idea of an independent judiciary, one distinct from the chaos of partisan politics. The threat that straight-ticket voting poses to institutional independence is both particularly strong and insidious, as the judiciary becomes just another partisan branch of government.
B. Party Influence and Judicial Accountability
At the opposite end of the spectrum of judicial values, accountability was supposedly the impetus for judicial elections in the first place. (15) Yet straight-ticket voting wreaks havoc on judicial independence, without concomitant gains in accountability.
Accountability is viable in a judicial selection system. While merit selection states tend to give a nod to incumbents, recent years have seen a number of instances in which state high court judges lost their seats in retention elections and contested elections due to one highly unpopular decision. For a recent and dramatic example of drastic voter enforcement of judicial accountability, look to the 2010 Iowa Supreme Court retention election, where three state supreme court justices lost their seat due to the unpopularity of a single decision on same-sex …