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It’s the vote spread that matters

I had an email conversation with Judge Mark Davidson regarding my post about straight-ticket voting and its effect on judicial races. He said I misunderstood the point he was trying to make in that Chron story. From his email, quoted with permission:

Your analysis fails to look at what I call the “Straight Ticket Judicial Vote” as opposed to the straight ticket vote. The STJV is the total vote cast by the trailing Judicial votegetter of each party. The assumption is that anyone voting for that person got the votes they did for one reason only – their party affiliation. That was the 97.2% the article referred to.

When I got elected in 1988, and for the election cycles on both sides of that year, the % of STJV was about 85%. In other words, 15% of the voters cast a two party judicial ballot. If that were still the case, there would be fewer mullets elected judge (of both parties). The point I made to the Chron reporter that called was that at least the people who were going through the ballot and casting votes for every candidate of both parties were thinking a little on who to vote for, unlike the lever pullers.

Judge Davidson is correct, that’s not what I looked at, and I didn’t grasp what he was getting at when I wrote that post. Which wouldn’t have really changed what I wrote, because I was specifically intending to address Sen. Dan Patrick’s bill and the uncritical accolades he has received for filing it. My point was that straight-ticket voting, whatever you may think of it, has hardly had the effect on judicial races that is being ascribed to it. The numbers here and elsewhere clearly prove that. That was my point.

But Judge Davidson raises a good point as well, one I hadn’t considered. And since it involves numbers, I’m constitutionally incapable of not digging into them. He calculates the STJV number by adding the percentage of the low-scoring judicial candidates from each party, so here’s a look at the STJVs for the elections that are listed on the County Clerk’s webpage:

2012 – 97.5
2010 – 96.1
2008 – 95.9
2006 – 96.8
2004 – 97.9
2002 – 95.0
2000 – 95.2
1998 – 94.3
1996 – 88.3

Judge Davidson includes the 1st and 14th Appeals Court candidates in his calculation, so I did the same here. This does have an effect on the numbers, as Eric Andell carried Harris County in 2000, thus dropping the low Republican score to under 50. Limit the reckoning to Harris County-only races, and you’d get 97.6 for 2000 (there were all of two contested non-Appeals Court races that year, as previously noted). Margaret Mirabal also carried Harris County in 1996, but Katie Kennedy won a District Court race with a higher score, so Mirabal’s performance had no effect.

Looking at these numbers, it strikes me that there’s nothing about Judge Davidson’s metric to invalidate the point I’ve been making. Since low-profile, low-information races like most judicial races are generally considered barometers of partisan preference, the STJV can be seen as a measure of how many people are voting for a party rather than a candidate in a judicial race. You can see why a lower number would generally be preferable. The thing is, though, that there’s not that much difference between the STJV scores in the years where Republicans were sweeping the judicial races and the two recent years in which both parties claimed victories. Indeed, it’s the year 2004 that had the highest STJV score, just as 2004 had a higher rate of straight-ticket voting than 2008, even though it was the latter year that started all this hand-wringing and pearl-clutching about the arbitrariness of straight-ticket voting, as if it had never been an issue in years before. That more than anything is what chaps me about the pious “reforms” being proffered by the likes of Sen. Patrick and the enabling he’s getting from the media. Where was all this concern between 1998 and 2006?

To be clear, despite my sniping in that earlier post, Judge Davidson does get this. Here’s more of what he said, after I responded to his initial email. I suggested that one might conclude from what he has been saying that an appointment system would be better than our partisan election system for judges:

I am against an appointment system. Always have been. Always will be.

What I told the Chron is that our system works just great in counties with a population under about 60,000. In, say, San Angelo, if there is a bad judge, everyone in the county knows about it. A bad judge in San Angelo will lose regardless of party affiliation.

The answer is more voter information about the judges. We had that back in the late eighties and early nineties, when the DJVs were in the mid teens. If the % of people voting a SPJV were to go from 97% to 85% again, the chances of a bozo of either party getting elected diminishes greatly. The last few cycles, the judicial candidates of both parties spent all of their money, not into educating the public about themselves, but on party material. This is, in part, the problem. I concede that where you have 40 judicial races on a ballot it is difficult for any one to stand out. To a limited but critical extent, that is what was going on in the late eighties. The voters’ guides then were printed by both newspapers. There are none today.

You are right that I cannot expect a million voters to be made aware of the qualifications of all judicial candidates. But the number should be more than 29,000! If the number of voters casting a two party judicial ballot could go back to, say, 100,000, there would not be a problem.

I agree that it’s harder to get away with being a bozo in a smaller electorate, though the extreme partisan split of Tom Green County, where San Angelo is the county seat, might be too high a wall a Democrat to scale, even against a Republican bozo. Be that as it may, I take his point, and absolutely agree with the idea of more publicly available information about judges and judicial candidates as the best way forward. Again, one of the strange things about this debate is that it’s happening at a time when we actually have members of both parties winning judicial races in Harris County. Before 2008, the last time that happened was Kennedy’s win in 1996. I’ll stipulate that split partisan results do not necessarily equate to optimally meritorious results, but I continue to be amazed by the fact that only now that Democrats are winning most of these races is it a political problem to be dealt with by such famous non-partisans as Dan Patrick.

Of course, getting good, objective information out to the voters is easier said than done. Back in 1988, there were only so many ways to spread news. Put a story in the Chron and the Post and you were good. Nowadays, well, you know what the scene is like. Even if you could be confident in your distribution channels, ensuring that the data is objective, and more importantly is seen as objective by the audience, will be a big challenge. I’m open to suggestion if anyone has any thoughts on this.

Anyway. Whatever you think the problems are with our system of making judges, the points I’m trying to make are 1) they didn’t just magically appear beginning in 2008, when the Democrats first started winning judicial races again; by every measure I can come up with, it had been like this for at least a decade, and 2) fixing these shortfalls will require more than simple, bumper-sticker solutions. Every approach has its pros and cons, and we can’t fix anything unless we really understand what it is we’re trying to fix and why our proposed alternative gains more than it loses. I promise, I’ll quit complaining about this if we ever get to that. My thanks to Judge Davidson for the feedback and the opportunity to explore this from another angle.

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