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 . …