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How many contested judicial primaries should we expect?

We already know that we’re going to get primary challenges to at least one Democratic countywide officeholder, as County Attorney Vince Ryan has two challengers lining up against him, and DA Kim Ogg has at least one person who has announced interest in challenging her. Most of the county offices available are judicial, though, and now that the local judiciary (other than a few JPs) is entirely Democratic, the path to gaining a bench for yourself is limited if one doesn’t want to take on a Democratic incumbent. I had a conversation about this with some folks recently, and we were debating how many such challenges we may see this year. I thought the number would be relatively small, and I based that on the belief that there weren’t that many primary challenges to Republican judges in recent years. That was my intuition, but I didn’t know the actual numbers at the time. I’ve now had a chance to look through recent primary history, and this is what I found:


Republican judicial primary challenges

2002 - 5
2004 - 0
2006 - 4
2008 - 1
2010 - 1
2014 - 3
2018 - 1

That’s less than I had thought. A couple of notes here. I only looked at the years in which all the incumbents were Republican (so no 2012 or 2016), and I limited myself to district and county courts (so no statewide, appeals courts, or JPs). There were some contested races in years where a jurist had been appointed to complete the term of someone who had stepped down or gotten a promotion – in 2008, there were two such races, in in 2012 there were four, for example – but I put those in a separate category. Basically, from what I found, there were actually very few challenges to sitting judges who had served full term. Make of that what you will.

Now, a couple of caveats here. One possible reason for the lack of challenges to four-year incumbents may be because there often were benches vacated in the middle of someone’s tenure, which allowed for a challenge of someone who had been appointed. These judges presumably felt comfortable stepping down mid-term because they knew their replacement would also be a Republican, with district court judges being appointed by the Governor and county court judges being appointed by Commissioners Court. With the exception of Al Bennett, who was named to a federal bench, no Democratic district court judge has stepped down since the first set were elected in 2008. Some have declined to run for re-election, but no others have given Rick Perry or Greg Abbott the opportunity to pick their interim replacement. County court judges won’t have that concern now, but for the foreseeable future I don’t expect any district court judges to abandon their post before it expires if they can at all help it. That points towards more primary challenges than what we had seen in the past.

In addition, while there was no upward trend in primary challenges over time, I think we’re in a different era now, and I think people will be less squeamish about taking that plunge. Honestly, if there ever was a year to try it, it would be this year, because the extreme turnout expected due to the Presidential race ought to make most of these races pure tossups, and by “tossup” I mean the most important factor will be your ballot position, which is determined by random draw. We’re all going to need to be on guard for low-grade opportunists who hope to luck into a bench. I hope I’m overstating this concern.

Anyway. Unlike for executive offices, I don’t expect judicial challengers to announce themselves this early, but it will be filing season before you know it. What do you think will happen?

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3 Comments

  1. Greg Wythe says:

    To reiterate my marker (for now) from that conversation: 50% of countywide officeholders will see primary challenges. I might need to qualify this as “attempted” challenges in case petitions fail to qualify for judicial candidates.

    Reasoning: AOC and the most favorable General Election environment for Dems since … 1964? There’s also the point that an open Dem presidential primary will drive up the share of turnout that comes out of the woodwork and is damn near impossible to target. That could lead to a number of surprise defeats in the primary.

  2. TC says:

    A few thoughts:
    -I suspect part of the reason why there was a downward trend in primary challenges over time was because the 1994 Republican sweep caught a lot of people by surprise, and that meant for a while there was a combination of oddballs on the bench and ambitious Republican pols who missed out on running that year. In later years, though, those 1994 judges were either off the bench or had won enough elections that few wanted to challenge them.
    -So, with that said, the fact that most people saw 2018 coming in Harris County probably means that anybody who wasn’t running in 2018 probably isn’t interested in being a judge.
    -I heard a rumor a while back that Gov. Perry strongly preferred retiring district judges to resign midterm and allow him to appoint the replacement rather than serve out their term and leave it to the voters. Make of that what you will. (That said, Democratic district judges certainly wouldn’t be subject to the same pressures.)
    -You’re right that there’s less of a stigma attached to primary challenges than there once was. Then again, see above. If there are truly awful or incompetent judges on the bench, they might draw a primary challenge — but I’d guess you would be unlikely to see primary challenges resulting from sheer ambition. (As to the AOC point, being a Congressman is not the same thing as being a district judge.)

  3. TC – Good feedback. thanks for replying. I heard the same thing about Perry, which seems to have carried over to Abbott. Not a factor at this time, obviously.

    Greg – I agree that the 2020 election is the most favorable environment we’ve seen in a long time for random primary challenges. We’re already seeing it in Congress (two challengers for SJL so far). If it happens, I won’t be surprised. But so far, if it is going to happen, it’s not apparent yet.