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straight ticket voting

Endorsement watch: Criminal court judges

There’s a new slate of endorsements from the Chron up, all for Criminal District Court races. More Republicans, mostly incumbents, were endorsed than Dems, but in many cases it was close. Of interest to me was the first appearance of one-star candidates, reflecting the Chron’s new star rating system. One of the one star candidates is a Republican, and one is a Democratic, who was also the focus of a sidebar editorial about the perils of voting a straight ticket.

There are two ways to look at this. One is as that editorial says, that as long as we elect judges via a partisan political process, we ought to take the time to at least know who the standout candidates are and do our best to elect and retain the best of them, regardless of the party label. The other is that the only way to change the Republican Party as it now stands is to give it an epic, all-encompassing beatdown at the polls, and if a cost of that is the loss of a couple of good judges, well, the needs of the many outweigh the needs of the few. I’m not going to suggest a path for you – you’re all a bunch of intelligent and discerning individuals – but this is the real choice as I see it.

This will be your last year to vote a straight party ticket

Whether you like it or not. The linked story looks at how this upcoming change, to go into effect in 2020, may affect judicial elections.

Texas elects its judges, leaving the nearly anonymous people in charge of the third branch of state government in the hands of voters who have only the vaguest idea of who they are.

It’s one of the built-in problems of running a big state. Ballots are long. Attention spans are short. Judges are almost as invisible as they are important — a critical part of government located a long way from the noisy and partisan front lines of civics and politics.

The top of the ballot gets the attention. The bottom of the ballot gets leftovers.

When a party’s candidates at the top of the ticket are doing well, it bodes well for that party’s candidates at the bottom — for the time being anyway. For at least one more election, Texans will be able to cast straight-party votes — choosing everybody on their party’s ticket without going race-by-race through sometimes long ballots.

Texas lawmakers decided last year to get rid of the straight-ticket option starting in 2020. It’s a Republican Legislature and governor and straight-ticket Democrats in Dallas and Harris and other big counties have been making early retirees of Republican judges in recent elections.

[…]

When straight-ticket voting comes to an end in Texas, judges will to win by figuring out how to drag their supporters to the bottom of long ballots. For now, they have to worry about how their fellow partisans are doing at the top of the ticket — and whether the big blue counties will spoil their chances.

See here and here for thoughts I have expressed on this subject in the past. No question, turnout for downballot races – not just judicial, but for things like County Clerk and Railroad Commissioner and whatnot – will decrease when the one-button option disappears, though I expect both parties will put a lot of energy into convincing people to vote all the way down. I just want to point out that there’s already more variance than you might think in judicial race vote totals. We’ll see how much that increases in two years, assuming the Lege doesn’t undo itself next year.

Tom Wakely

As noted in the update and comments to Wednesday’s post about our first Democratic candidate for Governor, we now have a second such candidate, Tom Wakely. PDiddie brings word of Wakely’s announcement, which he made on Down with Tyranny, a more nationally-oriented blog. Wakely ran against Rep. Lamar Smith in 2016, and had been running against him again this year – he filed a Q2 FEC report, and the title of his website, which you can see via Google search for “Tom Wakely”, is “Tom Wakely to run against Lamar Smith in 2018”. The site is now just a placeholder, presumably awaiting a redesign for the change in focus of the campaign, so you’ll have to wait a bit to see what it looks like. For now, if you want to know more about him, go read his announcement or this Gilbert Garcia column from last year about his initial campaign against the odious Smith:

Tom Wakely

How else to describe a Bernie Sanders devotee who helped César Chávez organize grape boycotts in the 1970s, became a Unitarian Universalist pastor in the 1980s, ran a jazz club in Mexico in the 2000s and now uses his white-brick North Side home as a veterans hospice?

Wakely, 62, kicks off his general-election campaign Saturday afternoon at Tilo Mexican Restaurant (two blocks from his campaign headquarters), marking the white-bearded activist’s graduation from a self-described role on the political fringes to a spot closer to the center of the arena.

The only political office he ever sought prior to this year was a Wisconsin school board post he won 25 years ago. That probably would have been the end of his political career if not for the encouragement of Lucy Coffey, a World War II veteran who died last March in San Antonio at the age of 108. Coffey, the country’s oldest living female veteran at the time of her passing, befriended Wakely near the end of her life.

One day, Smith visited Coffey at the hospice run by Wakely and his wife, Lety, a native of Guadalajara, Mexico. After Smith concluded his visit, Coffey realized who he was, and remembered that he had voted against a 2010 bill designed to provide billions of dollars for medical treatment to 9/11 first responders.

“She was so upset with this guy,” Wakely said. “She said, ‘Someone needs to run against him.’”

Wakely decided to be that someone.

His primary victory over businessman Tejas Vakil provides Wakely the honor of being political roadkill for Smith, who has been mowing down Democratic rivals since Donald Trump was on his first marriage. Over a span of 30 years, Smith has never won a general election by a margin of less than 25 percent.

Wakely, it should be noted, did better than losing by 25 points to Smith – he lost by a bit more than 20 in 2016. Wakely notes in his announcement post that he “received more votes than any Democrat in the State of Texas running against a incumbent Republican member of Congress”. True, but that’s at least partly because he ran in the district that had more total votes cast than any other. The flip side of his statement is that Smith received more votes than all his fellow incumbent Republicans except for Kevin Brady (who was unopposed) and Michael Burgess, who was in the district with the second-highest overall turnout. If one wants to play the vote comparison game I prefer to do it by looking at how many votes each candidate from the same party received in a given district. Here’s how that looks in CD21:


Candidate     Votes    Pct
==========================
Clinton     152,515  42.1%
Garza       135,365  38.3%
Burns       133,428  38.1%
Johnson     131,683  37.5%
Wakely      129,765  36.5%
Robinson    129,520  36.8%
Meyers      129,412  36.8%
Westergren  126,623  35.8%
Yarbrough   122,144  34.6%

Right in the middle, literally the median Democrat. No obvious reason based on this to think he’d draw votes away from an opponent, but no reason to think he’d lose them, either. I admire his reason for running last year, and I look forward to hearing what he has to say for himself.

One more point to add, and that’s to correct something in PDiddie’s post, where he refers to the new law to ban straight ticket voting, which was HB25. There may or may not be a lawsuit against this, but none of it matters for 2018 because the law won’t take effect before then. Here’s the key passage in the text of the bill: “As soon as practicable after September 1, 2020, the Secretary of state shall distribute electronically to each county election administrator and the county chair of each political party notice that straight ticket voting has been eliminated”. In other words, we will still be able to vote a straight ticket next year. Possibly for the last time, but we will get at least one more go-round.

Senate passes ban on straight-ticket voting

It’s happening.

The Texas Senate gave initial approval Wednesday to legislation that would eliminate straight-ticket voting in all elections.

By a vote of 20-10, senators passed House Bill 25 over objections from Democrats who warned of unintended consequences — including a disproportionate impact on minority voters.

“Frankly, I don’t see any purpose for this legislation other than trying to dilute the vote of Democrats and, more specifically, minorities,” said state Sen. Royce West, D-Dallas.

The bill’s supporters say it would force voters to make more informed decisions in individual elections. “What we’re doing is showing every race matters,” the Senate sponsor, Republican state Sen. Kelly Hancock of North Richland Hills, said Wednesday.

The legislation’s backers also argue it would bring Texas in line with at least 40 other states that do not allow straight-ticket voting, the option for voters to automatically cast their ballot for every candidate from a single party. Straight-ticket ballots made up nearly 64 percent of total votes cast in the state’s 10 largest counties in 2016.

The preliminary approval of HB 25 on Wednesday came after Hancock amended it to postpone its effective date from September 2017 to September 2020. That will allow candidates more time to prepare for the change, Hancock said.

You know how I feel about this. I’ve got no more arguments to make. There’s been talk of a lawsuit, and I won’t be surprised if one gets filed. The Republicans could improve their position by addressing the issue of the longer lines that will result from the removal of this option – more money to counties to buy more voting machines for early and precinct voting locations would help a lot. I don’t they’re any more likely to do this than they were to mitigate the 2011 voter ID bill, but they have that option and they’ll have the 2019 legislative session in which to exercise it. We’ll see what they do. The Press has more.

Bill to ban straight-ticket voting advances in the Senate

This could happen.

Rep. Ron Simmons

A Texas Senate panel approved legislation Thursday that would end straight-ticket voting in all elections.

The Senate Committee on Business & Commerce voted 7-0 to send House Bill 25 for potential consideration by the full chamber. Two members, the only Democrats on the panel, were absent.

The vote came less than a week after the House passed the legislation, mostly along party lines. Starting with the 2018 elections, the bill would take away the option for voters to automatically cast their ballot for every candidate from a single party.

[…]

In the Thursday hearing, proponents of the bill — including its Senate sponsor, Hancock — said it would force voters to make more informed decisions when casting their ballots. Critics suggested it could lead to voting rights violations.

“We believe that this takes away one method of voting that minority voters overwhelmingly use to choose the candidates of their choice,” said Glen Maxey, legislative affairs director for the Texas Democratic Party.

Maxey also questioned why the bill wound up in the Business & Commerce Committee, not the State Affairs Committee. Such a maneuver is “what the federal courts have noted as abnormal legislative procedure,” Maxey said.

A federal judge blocked a similar law last year in Michigan, saying it would disproportionately affect black voters. After that ruling came up in Thursday’s hearing, Hancock noted that the Michigan law moved through a “completely different court system than we’ll move through” if HB 25 becomes law and it is challenged.

Hancock also sought to reassure critics of the bill who said it would lead to longer lines at polling places, saying more locations would solve the problem.

See here for the background. Sen. Hancock is correct that more locations – and more machines per location – can solve the problems, but those words are meaningless without funding from the state to cover the costs. Not covering costs, going through a different committee, taking a vote when the two Dems on the committee were absent – none of this is going to look good when the inevitable lawsuit is filed.

House Democrats on Friday argued eliminating the “one-punch” choice would constitute an attack on Texans’ voting rights, particularly the disabled, the elderly and voters in large cities, where ballots and lines are longer and more people rely on public transportation.

Multiple lawmakers said minority voters rely on the straight-ticket option more than Anglos, evidence that was used as the basis of a 2016 federal court ruling that blocked a similar law in Michigan.

“This bill hasn’t been vetted,” said Representative Ron Reynolds, D-Missouri City. “We don’t know how much it will cost; we don’t know if it will violate the Voting Rights Act of 1964. What we do know is that federal courts have ruled recently that laws passed by Texas discriminated against African-American and Hispanic voters.”

Three federal court rulings since March have found that Texas intentionally discriminated against African-American and Hispanic voters in voter ID and redistricting cases. The author of HB 25, Representative Ron Simmons, R-Carrollton, said repeatedly during debate Friday night that he was not aware of the rulings.

“I’ve been busy down here,” he said on the House floor, defending his lack of knowledge of the widely reported court decisions.

Representative Harold Dutton Jr., D-Houston, predicted the bill would be challenged “as a voter suppression bill.”

In the Michigan ruling last July, a federal judge wrote that abolishing the straight-ticket option would disproportionately impact African-American voters, who use it more often and already face longer voting lines in urban areas. The measure was designed “to require voters to spend more time filling more bubbles,” which could “discourage voting,” wrote Judge Gershwin A. Drain. The Supreme Court declined to hear Michigan’s appeal in September.

We’ll see what happens. There’s still time for the bill to be amended to address the concerns that Democrats have raised. I don’t expect that – why should the Republicans change their ways now? – but at least they can’t say they weren’t warned.

Bill to eliminate straight-ticket voting passes the House

Here we go again.

Rep. Ron Simmons

The Texas House late Friday night gave preliminary approval to a bill that would eliminate “one-punch” voting, forcing voters to make an individual decision on every ballot item, starting with the 2020 election.

House Bill 25, approved 85-59, could drastically change Texas politics considering straight-ticket ballots accounted for almost 64 percent of total votes cast in the state’s 10 largest counties in 2016. Forty-one states don’t allow straight-ticket voting, according to the National Conference of State Legislatures.

State Rep. Ron Simmons, R-Carrollton, one of the authors of HB 25, said he filed the measure to foster more educated voters since they’d have to go down the ballot and make a decision on every race.

“I think it’ll give us better candidates and better elected officials. It won’t have people getting voted out just because of their party identity,” Simmons told The Texas Tribune on the House floor prior to Friday’s vote.

Opponents of the measure said they’re worried Simmons’ bill will lead to lower voter turnout. On the House floor, several Democrats, including state Rep. Chris Turner, D-Grand Prairie, expressed concerns that getting rid of one-punch voting would inconvenience voters and discourage them from participating in future election.

“There are a lot of races on the ballot in these general elections, and voting individually takes extra time,” Turner said. “Instead of one-punch, you’re asking people to individually vote in dozens of races, perhaps even 100 of them. This can be a real impediment.”

[…]

Simmons, however, said that equating a high number of straight-ticket voters to civic engagement is “kind of like comparing apples or oranges.” He pushed back on Democrats who insisted that taking away one-punch voting infringed on the rights of Texans.

“People will still come out to vote, they’ll just take a few more seconds to get down the ballot. And it’ll make sure people know who they’re voting for,” he said.

It will definitely take more than a few extra seconds to vote a full ballot, especially in a big county like Harris. Making such a disingenuous argument against the concerns being raised about this bill does not do anything to relieve suspicions that it’s just a response to Democratic dominance of the big urban counties. I wrote a long piece about this when Rep. Simmons filed the same bill in 2015. My feelings haven’t changed – indeed, they haven’t changed much since 2009 when the elimination of straight ticket voting first gained prominence as a Republican priority – so go read that so I don’t have to repeat myself again.

I don’t think there’s any question that if this bill passes, it will take longer to vote, and given that only one Democrat voted for HB25 while only five or six Republicans voted against it, both parties have a pretty good guess about who will be more affected by that. Those concerns, along with talk of future lawsuits, were mentioned in the Chron story about this bill. It would be quite simple for Rep. Simmons to address those concerns if he wanted to. Extend and expand early voting, with more locations and longer hours and more days (*), mandate more voting machines at every polling place, and expand eligibility to vote by mail. Do that, and put up the money to help counties cover the extra costs, and I’ll drop all my objections. Until then, I question the motive behind this. Matt Angle of the Lone Star Project, writing in Medium, has more.

(*) Republicans have also tried to limit early voting in the past, again after an election where Democrats did well. Limits on early voting were a part of the vote-suppression tactics in places like North Carolina as well. If Republicans don’t want bills like HB25 to be seen as an attack on the ability to vote, it’s on them to understand and address the concerns that these bills raise.

Is the end near for straight-ticket voting?

It could be.

Rep. Ron Simmons

Partisan efficiency experts might love the time-saving charms of straight-ticket voting, but a number of the state’s top elected officials are ready to outlaw the practice.

Straight-ticket, or one-punch, voting allows people to cast a ballot for all of one party’s candidates with one pull of the lever, stroke of the pencil or click of the voting button.

One and done.

Its requires partisan faith on the part of a voter, an expression of trust in a party’s primary voters, a conviction that the chosen candidates — no matter who they are, what they’ve done and whether they are qualified — are better than candidates offered by the opposition party.

And it makes the coattails of the people at the top of the ballot very, very influential.

Just ask a judge.

“I will say only a word about judicial selection, but it is a word of warning,” Texas Supreme Chief Justice Nathan Hecht said this week in his State of the Judiciary speech. “In November, many good judges lost solely because voters in their districts preferred a presidential candidate in the other party. These kinds of partisan sweeps are common, with judicial candidates at the mercy of the top of the ticket. I do not disparage our new judges. I welcome them. My point is only that qualifications did not drive their election; partisan politics did. Such partisan sweeps are demoralizing to judges and disruptive to the legal system. But worse than that, when partisan politics is the driving force, and the political climate is as harsh as ours has become, judicial elections make judges more political, and judicial independence is the casualty.”

State Rep. Ron Simmons, R-Carrollton, has filed legislation — House Bill 433 —to end straight-ticket voting in Texas. He might have some angels: House Speaker Joe Straus and Lt. Gov. Dan Patrick have both sponsored bans in the past. Both remain critical of one-punch voting.

The major political parties are reluctant to part with it, however — it’s part of the regulatory advantage that makes the Republicans and the Democrats appear to offer the only viable choices for Americans — or Texans — who want to take part in civic life.

The two-party racket just about kills the possibility that you can find a candidate with whom you completely agree. Instead, you’re generally stuck with two options, left to choose the least undesirable candidate in a field of two.

Libertarians and Greens and Teas and Occupies and who knows who else would love to elbow their way in, but this is a protectorate.

[…]

One of the best arguments for straight-ticket voting is that there are too many people on the general election ballot, that too little is known about them and that the party label is the average voter’s most reliable guide to which candidate is more likely to agree with that voter’s political preferences.

A strong argument against is that partisan coattails can be stronger than brains. Every election seems to end with an unintended consequence, often a good judge tossed aside because the political winds replaced one party’s flag with another — or a loon elected by voters who actually knew nothing about their candidate.

Rep. Simmons filed the same bill in 2015, and what I wrote about it then still stands. Putting aside the fact that nobody had a problem with this until Democrats started winning judicial races in Dallas and Harris Counties, the arguments that Ross Ramsey puts forth just don’t make sense. You can vote straight ticket Libertarian or Green, you know, and if you can’t vote “Tea Party” it’s because no one is identified on the ballot as such because no official political party by that name exists. This past year was in many ways the best year ever for third party candidates, as they racked up big numbers in multiple statewide races, in particular for President and for Railroad Commissioner, despite the prevalence of straight party voting. Plenty of “loons” get elected in primaries and non-partisan elections (see, for instance, Dave Wilson getting elected to the HCC Board of Trustees in 2013). In what way does straight ticket voting make the difference?

The one thing that will change if straight ticket voting is taken away is that it will take longer to vote. If I had any reason to believe that the people pushing this also intended to address that problem, by allocating some money for counties to buy extra voting machines or allowing longer early voting hours or broadening the class of people who can vote by mail, then I would have no strong objection to this. But they don’t, and I have no reason to see this as anything but another way to make voting a little harder and less pleasant for some people. As such, I continue to oppose these bills.

A theory about third parties

Before I get to that theory, have you ever wondered about the people who vote straight ticket Libertarian or Green in Harris County? I got to wondering about them, because that’s the sort of thing that I think about at times like this. Here are the total numbers of such people, grouped by Presidential and non-Presidential years, going back to 2000:


Year  Total votes  SP Lib  SP Green   Lib%  Green%
==================================================
2000      995,631   1,935     4,503  0.19%   0.45%
2004    1,088,793   3,343            0.31%
2008    1,188,731   4,017            0.34%
2012    1,204,167   4,777     1,759  0.40%   0.15%
2016    1,336,985   8,781     4,577  0.66%   0.34%

2002      656,682   1,159     1,399  0.18%   0.21%
2006      601,186   3,052            0.51%
2010      798,995   2,506     1,110  0.31%   0.14%
2014      688,018   2,922     1,180  0.42%   0.17%

“SP Lib” is the total number of straight party Libertarian votes, and “SP Green” is the same for the Greens. “Lib%” and “Green%” are the share of these straight party votes to all votes cast in the county. If you look at the election result pages on the HarrisVotes.com website, you will see that my percentages are lower than the ones shown there. That’s because they calculate the percentage of these votes as a share of all straight-party votes cast, not a share of all votes. I did it this way to see what if any trend there was for Libertarian and Green voting overall. For comparison purposes, 30.01% of all votes in Harris county this year were straight ticket Republican, with 35.35% of all votes being straight-ticket Democratic.

As you can see, in the Presidential years the Libertarians had been slowly ticking upwards, with a bit of a jump this year, though the trend is more erratic in the off years. The spike in 2006 is odd, because the Libertarian candidate for Governor received only 0.61% of the vote that year. If you wanted to vote outside the two-party box for Governor in 2006, you had plenty of choices. The Greens weren’t officially on the ballot in 2004, 2006, or 2008, so there’s less of a trend to spot. I’d say they do better in or right after a year where they have a Presidential candidate who gets some attention. Whether any of this will hold next year is not something I’m going to speculate about at this time. My mantra for the next twelve to eighteen months is “conditions in 2018 will be different than they were in 2014 and 2010”, and leave it at that.

That brings me to my theory, which applies to low profile races – not President, not Senate, not Governor, sometimes not other races. I’m limiting myself to statewide contests here, since that’s where you get most of the third party candidates that an individual voter sees. In my case, there was a Green candidate for CD18, a Libertarian for SBOE, and nothing else below the state level. I believe that in these races, which this year would be the Railroad Commission and the two state courts, voters for third party candidates can be broadly sorted into one of three groups. The first group is the party faithful, which as we have just seen is a relatively small cohort. There are probably a few more people who vote L or G as a first choice but don’t vote straight ticket, but that’s still a small group even in the context of just third party voters. Most of the people voting third party in these races aren’t voting third party as a matter of course.

So who are they? Group Two I believe is people who normally vote for Rs or Ds but who refuse to vote for their candidate in this particular instance. That may be because the candidate of their party is too/not sufficiently liberal/conservative for them, because that candidate supports or opposes a specific thing that is of great importance to them, because the candidate has ethical baggage, or because they just don’t like that candidate for some reason. In these cases, they don’t want to vote for the candidate of the other party, so a third party it is. Gary Johnson obviously got a lot of these votes in the Presidential race, but the downballot exemplar for this one was the Railroad Commissioner race, where Libertarian Mark Miller got a bunch of newspaper endorsements for being the most qualified candidate running.

The thing is, I don’t think there are that many races like that. I think in a lot of these races, people just don’t know anything about any of the candidates. So if you’re someone who (say) generally votes Democratic but aren’t that committed to it and you’re looking at a race for the Court of Criminal Appeals, you may say to yourself “well, I know I don’t want to vote for the Republican, but I don’t know who any of these other people are, so I’ll just pick one and move on”. These people are my Group Three.

What that says to me first of all is that both Republicans and Democrats are leaving some votes on the table in these downballot races by not doing a better job of getting their candidates’ names out there. That’s not much of a concern for the Republicans, who continue to win by double-digit margins, but it could eventually matter. I see this as an extension of a problem that Democrats are increasingly having in their primaries, where candidates like RRC nominee Grady Yarbrough have won races by a combination of pseudo-name recognition and random chance because no one knows who the hell these people are. I have many wishes for Texas Democrats going forward, and high on my list is for the party and the donor class to take these downballot primaries seriously.

One possible exception to this may be for Latino candidates. Look at the top votegetters for each party: Supreme Court candidates Eva Guzman and Dori Contreras Garza. My hypothesis is that Latino voters in a Group Three situation will choose a Latino candidate, even possibly one from their non-preferred party, instead of just randomly picking someone. Again, this is in races where none of the candidates are known to the voters, and thus there could be a different outcome if people had more knowledge. If we ever get to that point, maybe we’ll see that difference.

Finally, I believe my theory is consistent with the Libertarian candidate almost always doing better than the Green candidate does in these situations, for the simple reason that the Libertarian candidate appears on the ballot above the Green candidate. If it’s true that some people just pick a name after having moved past the first two candidates, then it makes sense that the first candidate listed after those two would get a larger share.

Anyway, that’s my theory. I could be wrong, and I doubt anyone other than me had given this much thought. I’ll get back to the precinct analyses tomorrow. Let me know what you think about this.

Early voting, Day Eight: We do have a pretty good idea of who has been voting so far

Why such a mushy article about the state of early voting so far?

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Because Texas voters can use a single click to back an entire slate, the down-ballot candidates running countywide have ever-slimming chances of influencing their destinies. As polarization and straight-ticket voting grow, the outlook is even more challenging for judicial candidates, who do not like touting their candidacies in a partisan way in the first place.

“It’s a hell of a way to run a railroad,” said District Court Judge Ted Halbach, one of a handful of Republican judges who eked out wins in 2008 and again four years later. “I’ve been the beneficiary and now I face the challenges. But you only can worry about what you can control – and you can’t control very much.”

The 2016 presidential battle, which may go down as the ugliest and most unusual of modern times, could have a profound local impact. Both candidates provoke high negative opinions, which could depress voter turnout or inspire it.

Early vote totals suggest the latter. More than 566,000 ballots were cast in the first week, a record. Lane Lewis, the Democratic Party chairman for Harris County, said the early turnout bolsters his hope for another “wave” election.

“Do I believe Democrats are doing well? Absolutely,” Lewis said. “Five days of voting is not enough to predict an outcome. I wouldn’t say anyone is beating the victory drum.”

Donald Trump’s faithful seem likely to show up en masse, but U.S. Sen. Ted Cruz was the big winner in the spring primary, taking 45 percent of the Harris County vote. What will the Cruz supporters do? There is a reasonable possibility that suburban Republican women will cross the party divide and give Hillary Clinton a local win to match what opinion polls are showing in many states. The question is, will they step back to help the down-ticket Republicans?

“This year, nobody knows,” said Harris County Judge Ed Emmett, a 2008 Republican survivor. “Will the turnout be high or low? Will they turn out for Trump or against Trump? Will Hillary get the same kind of enthusiastic turnout Obama did? I don’t see it. But it’s true that we don’t really know.”

The countywide down-ballot races include sheriff, district attorney, county judge, education board, constables and scores of judicial seats. The people seeking them this time cannot decide whether to be confident or scared, Emmett said.

“I was at a candidate meet-and-greet the other day, a bipartisan thing, and in talking to those candidates, to a person they were frantic over who was going to show up and vote,” he said. “Nobody knows.”

“We treat Harris County as a very evenly divided battleground ‘state,'” said Harris County Republican Chairman Paul Simpson. “When I was running (for chairman), that was my constant message. It was a Democratic county, then became Republican, then switched to be very evenly divided. Every cycle is a pitched battle.”

[…]

Political consultant Keir Murray, who works with Democratic candidates, said he is optimistic about the party’s future, though like everyone else he is not so sure about this year.

“The problem is, if you are a Republican office holder, you don’t have a lot of margin for error,” Murray said. “If you get marginally lower turnout from your base voters, you lose. Or, if you see some real uptick in Hispanic voting – and they have not been voting near their rates of registration – that would make a difference. There is evidence that this could happen because Trump has said very negative things about them.”

All due respect, but we do know who is voting, because the County Clerk puts out a roster of everyone who has voted after each day, and we have a pretty good idea of how they are voting. In fact, the Chron wrote about this on Friday, so I have no idea why they switched into this nobody-knows-anything mode. It’s true that the question of who among those that have not yet voted will turn out remains murkier, but the evidence we have so far is that there are still a lot more high-propensity Democrats left to vote, more than the number of high-propensity Republicans. I understand having a story that talks to the people who are on the ballot and who are being affected by what is going on now, but if you’re going to talk about what is happening, the consultant types are in a much better position to give you real information.

Anyway. The Trib has a nice tracker of the changes in early voting turnout for the biggest counties over the past three Presidential races. It’s up everywhere, but the uptick in Travis County in particular is amazing. El Paso is also doing very well, and so far the conventional wisdom is that this is good for Pete Gallego in our one swing Congressional district, CD23. That would have been at least a competitive race without the Trump factor, but maybe this time it will be blue all the way down, and not just in the Congressional race.

I went to bed before the Monday EV report came out, though I saw on Facebook that the number of voters was in the 73,000 range. That’s in line with the daily output from last week, though down a bit from the end of the week. We’ll see if things will slow down or level off, or if the usual pattern will hold and the last two days this week will be heavier. Here’s the Day 7 EV report, which brings you up to date through Sunday. The weekend was even better for Dems than the first five days were, so it’s all about what happens this week. The tracker spreadsheet is here, and I’ll update that when I get the Monday report.

UPDATE: And here are the Day 8 EV totals. It’s down a bit, but still higher than Day One was. The spreadsheet has been updated.

The Trump effect and the State Supreme Court

The Trib touches on a subject I addressed awhile ago.

Three Republican members of the Texas Supreme Court running for re-election are facing Democratic challengers who say they may have a chance in the solid-red state with Donald Trump at the top of the ballot.

Democrats point to recent polls that show Trump beating Hillary Clinton by just four points in Texas to explain a possible shift in Lone Star State politics. The Democratic National Committee announced plans in September to open headquarters in Houston to capitalize on the presidential race as a way to help down-ballot candidates.

But only one of the Democratic candidates for Texas Supreme Court — Dori Contreras Garza — has raised even close to enough money to be competitive. And even her bid is a long shot in a state that hasn’t elected a Democrat to the court since 1994. The court has nine justices who are elected statewide to staggered six-year terms.

The rest of the story is a profile of the three races and the candidates in them. The premise about fundraising is more than a little ridiculous because in all four of the cases cited, the amount raised by the candidate in question was less than $100K, which is basically a drop on a sidewalk in August. I mean, that’s modest money for a district City Council race in Houston. It literally would have zero effect on a statewide campaign, which for these races is all about getting one’s name out before the voters. I guarantee you, nobody who isn’t a political junkie or personally acquainted with a given candidate will have any idea who they are.

So, as is so often the case, these races will be determined by overall turnout. I’ve already shown how in a scenario where the margin between Donald Trump and Hillary Clinton is small, the chances that one or more downballot Democrats could be elected grow, as Democratic candidates have seen less of a dropoff in their vote total from the top of the ticket in recent years. I wrote that post after a poll came out showing Trump leading Clinton by six points. More recently, we have seen polls where Trump’s lead was two, three, and four points. That could be overstating how close the race really is, and it may well be that there are other factors such as a higher than usual share of Republicans who will support Clinton but not any other Democrat that will ensure the GOP statewide hegemony remains intact. But as I said in that earlier post, it is not crazy to think that a Dem could win statewide this year. And if one or more do, it won’t be because they raised $10K more than their opponents.

Chron overview of judicial races

In case anyone is paying attention to them.

HarrisCounty

As Harris County goes, so go most of its judicial races.

That truism appears to be good news for Democrats seeking to scoop up more district court benches in November, when two dozen criminal, civil and family court positions are up for grabs.

Three of the benches are open, while 10 Democrats and 11 Republicans are defending their seats.

“The Republicans are looking at a real uphill battle,” Rice University political scientist Mark Jones said, pointing to disaffection for Trump among some Republicans, which could impact voting patterns down the ballot. “I think the most likely scenario is we’re looking at a repeat of 2008, where we see a near or complete Democratic sweep of the judicial races.”

[…]

Looking for a repeat [of 2008], Harris County Democratic Party Chair Lane Lewis said the party is focused on encouraging voters to cast a straight-ticket ballot in November.

“I think you are going to see much more straight Democratic ticket voting. One, because we have the better candidates, and two, because their candidates are just so bad,” Lewis said. “The Republicans are going to lose votes because of Trump.”

Harris County Republican Party Chair Paul Simpson fired back, saying enthusiasm about Clinton does not compare to support for Obama eight years ago.

“This is not a wave, and I’ve been saying for months Hillary Clinton is not Barack Obama. She’s the status quo,” Simpson said, adding that traditional Democratic voters may cast their ballots for Trump.

Even so, Texas Southern University political scientist Jay Aiyer said Trump’s controversial candidacy provides a structural advantage for Democratic judges.

“Traditional Democratic voters are inclined to vote straight-ticket, and the same is not necessarily the case on the Republican side because you have a percentage of Republicans that are likely to not vote for (Trump) for president,” Aiyer said.

The story references the recent Hobby Center poll of Harris County, which has Hillary Clinton leading Donald Trump here by four or nine points, depending on how you define “likely voters”. As the story notes, a two-point win by President Obama in 2008 was enough for a near-Democratic sweep of the judicial races. Paul Simpson’s complaints aside, the last three Presidential races show that Democrats have done a better job voting all the way down the ballot than Republicans have done. That may change this year, but I personally would not bet on that. For what it’s worth, the little bit of gossip I’ve heard suggests that the Republican judges on the ballot this year are not feeling very confident. With all the standard caveats and disclaimers, I’d rather be in the Dems’ position right now.

Targeting straight ticket voting

From Trail Blazers:

Texas is one of only 10 states still doing straight-ticket voting but a North Texas legislator is hoping to change that.

At a hearing today, Rep. Ron Simmons (R-Carrollton) told the Elections Committee that doing away with such an option here would lead to a more informed voter and improve turnout in non-partisan ballot measure.

“The purpose of this bill is to increase the number of Republican elected officials thought out the state of Texas,” he halfway joked. “However I do believe the added benefit will be a more educated voter.”

But Glenn Maxey, of the Texas Democratic Party, said such a move could discourage voters.

“People are going to be standing in line for hours and hours because it’s going to take people not 10 minutes to vote but a half hour to do that kind of marking,” he said.

Bill Fairbrother, of the Texas Republican County Chairman Association, said cost is a concern.

“Think of all the additional machines, clerks, polling places … That instead of being able to click one box to take care of those races, you have to go back and choose on average 25 separate races,” he said.

However, both Maxey and Fairbrother noted that within their parties, there was division as those in more rural areas favored the bill.

Rep. Simmons wrote a TribTalk piece in February about this:

Rep. Ron Simmons

Every campaign season, candidates and interest groups spend hundreds of millions of dollars trying to “inform” voters. I use that word — rather than “educate” — on purpose.

Informing is nothing more than providing information to another party. Educating requires action on the part of the recipient, who must want to understand the information and absorb it. There’s no better example of this than at the ballot box. Anyone who has read our Founding Fathers’ writing would agree that their intent was for voters to be educated on the candidates and issues of the day. Unfortunately, current Texas law provides a way for citizens to skip spending the time and energy needed to become educated voters. It’s called straight-ticket voting.

Straight-ticket voting allows someone to simply select one box to vote for an entire slate of candidates from a particular political party. This often leads voters to elect candidates without any knowledge whatsoever of who they are. This subverts the purpose of our electoral process and puts the citizens of Texas at a severe disadvantage.

Virtually all voters educate themselves on candidates at the top of the ticket (president, governor, etc.). But many voters, partially because of straight-ticket voting, make little or no effort to educate themselves on the candidates at the bottom of the ticket running for offices that have the most direct effect on individual citizens — think county clerk, county commissioner, justice of the peace and state representative. These voters simply check the one box, either Democrat or Republican, and move on without giving it a second thought. This is bad for Texas.

I drafted a post at the time but had not gotten around to publishing it. Now seems like as good a time as any to rectify that, so here’s what I wrote in response to that.

Rep. Simmons has filed HB1288 to eliminate straight ticket voting. A different bill, to exempt judges and county officials from straight-ticket ballots in Texas’ largest counties, has been filed by Rep. Jason Villalba. I’ve nattered on about straight ticket voting in the past, and I’ll neither defend it nor condemn it today. I do, of course, have a couple of thoughts about this.

I agree that many voters are not fully educated about downballot candidates. Hell, a lot of voters are misinformed about the top of the ticket candidates, and of the top issues of the day. That problem is outside my scope here, but as a matter of general principle, eliminating straight ticket voting isn’t going to do anything to solve that problem. What it can and likely will do is reduce the number of people voting in those races. Maybe that means the average voter will be slightly more educated in those races, and maybe one can claim that’s a “better” outcome. I think that’s at best an open question.

Which leads to another question: Just how big an effect would this be? Putting it another way, if straight ticket voting were eliminated, how many more people would wind up skipping downballot races? I don’t have the bandwidth to do a thorough study, but here’s a quick and dirty look at the last four non-Presidential elections in Harris County:

Year Straight% CClerk% DClerk% Treas% ========================================= 2002 54.78% 6.74% 2006 47.67% 6.89% 7.99% 6.68% 2010 66.89% 4.50% 4.71% 3.93% 2014 68.04% 3.90% 4.09% 3.46%

“Straight%” is the total percentage of straight ticket votes, which as you can see has been much greater in the last two elections than the first two above. “CClerk%”, “DClerk%”, and “Treas%” are the undervote percentages for the County Clerk, District Clerk, and County Treasurer races. I picked those because they’re pretty far down on the ballot and they’d be targeted by Rep. Villalba’s bill. The County Clerk and District Clerk races were uncontested in 2002, so I don’t have a complete data set, but this suggests that more straight ticket votes means fewer undervotes, which is not too surprising. I wouldn’t draw too much of a conclusion from this, as the partisan environments are stronger now, with both parties making a priority out of urging their voters to fill in an oval in each race. The total effect isn’t that great – three percentage points in a 700,000 voter turnout context is a 21,000 vote difference – but it’s not nothing.

I don’t know what the numbers might look like if straight ticket voting were eliminated. I’m sure the parties would work that much harder to convince their voters to vote in each race. Not being able to depend on straight ticket voters for a potentially significant chunk of their final tally would likely spur these candidates to do more fundraising to raise their name recognition. Outside groups, for which there’s no shortage of money, might also take a greater interest in these races. There are a lot of factors to consider, but it wouldn’t shock me if 50,000 or even 100,000 voters in Harris County might have dropped off without participating in these past races in the absence of straight ticket voting. That’s a wild guess of up to 15% or so of total turnout. I’d expect something similar in other large counties. How much that might change if the parties, candidates, and outside interests responded as I envision is a question I can’t answer.

(If you’re wondering about Presidential years, the rate of straight ticket voting in the last three Presidential elections has been about the same in each – 64% in 2004, 62% in 2008, 68% in 2012. I don’t feel I have enough data to say anything even marginally useful.)

One point that I’ve made before in the context of proposals to separate judicial elections from the partisan voting process is that partisan labels are sometimes the only reliable piece of information voters have about a candidate. Most candidates who call themselves “Democratic” or “Republican” fall within a reasonably well-defined range of policy positions and cultural identifiers. There are plenty of variations, both mainstream (think Sarah Davis and Eddie Lucio and their respective stances on equality, for example) and extreme (think Kesha Rogers), but if you consider yourself a D or an R and you vote for a candidate with the same label but without knowing anything else about that candidate, the odds are pretty good that you’ve just voted for someone that you’d basically like and approve of. More to the point, you’ve probably just voted for someone you’d basically like and approve of more than any of the other options available to you in that race, and yes that includes races with more than two candidates. Is that enough information to justify one’s vote? Is it enough to justify the convenience of being able to vote quickly, instead of having to make the same choice you’d have made anyway several dozen times in a big county like Harris? If all we’re doing is making it take longer to vote, will we also take steps to mitigate that, like having more voting stations available at busy locations so the lines don’t get too long, or making it easier to vote by mail at one’s convenience? I know there are bills filed to do those things, but I don’t expect them to go anywhere.

These are some of the things I think about when I hear someone make the kind of proposals Reps. Simmona and Villalba are making. If Rep. Simmons’ bill were to pass and we found that the number of people voting in, say, County Clerk races was 20% less than in Governor’s races, would we consider that to be a good thing or a bad thing? You tell me. On the one hand, it would be harder to argue that the results of those elections were determined by uneducated voters. On the other hand, a lot of people spend a lot of time every post-election period bemoaning the low number of people who show up to vote. Bemoaning low turnout, and enabling it for what could be a lot of races by eliminating the one-button vote seems to me to be contradictory. Do we want everyone to vote or not? Do we think having some people vote in some races but not in others is the better way to do it? Killing straight ticket voting is an easy answer, though none of these bills may have an easy path to passage. How to get a better-educated electorate is a much harder question. What is it we really want? I’d say we should answer that first. PDiddie has more.

Wallace Jefferson is still going on about judicial elections

In an interview in The Atlantic, former Supreme Court Chief Justice Wallace Jefferson rides his favorite hobbyhorse of partisan judicial elections.

Hon. Wallace Jefferson

I’ve been talking about this for a long time. And I am not the first one. Republican or Democrat Chief Justices for the last 30 or 40 years have been calling on the legislature to change the way judges come to the bench in Texas. It is a broken system. We shouldn’t have partisan elections. I do not like the concept of a Republican or Democratic judge. I think fundraising undermines the confidence in a fair and impartial judicial system. So I would change it completely if I were king.

The sad reality, given the system that we have, is that if a judge wants to remain on the bench they have to find a way to reach the voters. And the only way to do that in Texas is in the media market. If you are running a statewide campaign, there are about 26 million people in Texas. You have Houston, Dallas, San Antonio, and Austin, and all are major media markets. Even to mail campaign literature, you’ve got to spend hundreds of thousands of dollars. So I don’t defend the system. I would want to change it.

[…]

In your free time one day, take a look at the ballot in Harris County—that’s Houston—in a presidential year. If you look at that ballot, there will be several pages of judges who are standing for election, from the Supreme Court, Court of Criminal Appeals … There are district court judges, county court judges, probate judges, municipal court judges. In that one year in Harris County, there are probably 60 or 70 judges on that ballot. The voters have no clue about the experience or background of these candidates for office, and so what happens in Texas is that voters increasingly vote based upon partisan affiliation.

And we have the ability to straight-ticket vote here and so, in 2008, when I was on the ballot, it was McCain versus Obama, and Republicans in Texas by a large margin voted for McCain but they voted straight-ticket. So they voted McCain and every single Republican down the ballot. And in Harris County that year, Obama was extraordinarily popular so they voted for Obama and every Democrat down the ballot. I won [my] election easily, [but] in Houston there was almost a complete sweep of Republican judges — they were replaced by Democrats.

That makes no sense. These votes are not based upon the merits of the judge but on partisan affiliation and if its not party affiliation it’s the sound of your name. I said that almost all the Republican judges in Harris County lost—well, there were three exceptions. And in each of those cases, the Democratic candidate had an ethnic-sounding name. That’s no way to differentiate among candidates. And if it’s not partisan affiliation or the sound of your name, it’s how much money you can raise—which, as I said, undermines confidence in impartial justice.

We’ve discussed this before. I’m just going to note the following tidbit I learned from querying the Contributor records at the Texas Ethics Commission:

Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 5,000.00, 05/21/2001
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 8,015.00, 02/20/2002
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 5,000.00, 06/27/2002
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 5,000.00, 10/31/2005
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 2,500.00, 03/05/2007
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 7,500.00, 06/27/2008
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 2,500.00, 10/14/2008
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 5,000.00, 10/14/2008

When Wallace Jefferson is ready to talk about how judicial elections are financed, then I’ll be ready to take him seriously. Until then, as far as I’m concerned none of his proposals have any chance of actually achieving the reforms he says he wants.

The party-switchers of Bexar County

Nice.

Carlo Key

A Bexar County judge elected during the “red tide” of 2010 is switching parties.

Standing at the foot of the Bexar County Courthouse steps, County Court-at-Law No. 11 Judge Carlo Key said Monday he is joining the Democratic Party and will seek reelection as a Democrat in November 2014.

“Make no mistake, I did not leave the Republican Party, it left me,” said Key, flanked by high-ranking Democrats. “My principles have led me to the Democratic Party, and my only hope is that more people of principle will follow me.”

While he’s been mulling the decision for several weeks, it was the recent federal government shutdown that caused Key to seriously consider switching parties.

[…]

A native of Marshall, Key, 38, was an attorney before he joined the wave of Republican judges who won seats in 2010, when all but one of the new county judges elected that year were Republicans. Key is a 2002 graduate of the Baylor Law School.

He has pitted himself against the law enforcement community by forbidding testimony that a horizontal gaze nystagmus test – in which an officer uses a pen or finger to track involuntary eye movements — indicates intoxication. This summer, Key learned he would face a challenger in the Republican primaries — Julie Wright, a prosecutor married to a police officer.

His announcement came just days after another Bexar County Republican left the party. Last week, Therese Huntzinger, 55, announced she will run for district attorney after recasting herself as a Democrat. Huntzinger, a criminal defense attorney who could face 15-year incumbent DA Susan Reed in the general election, ran unsuccessfully as a Republican for a district judge seat in 1998.

Bexar County Democratic Party Chair Manuel Medina said two other judges who attended a recent Democratic Party event could also make the switch in the near future, and U.S. Congressman Joaquín Castro said he expects more to follow Key and Huntzinger.

“The Republican Party is catering to such a narrow ideological base,” he said, “and many Texans are realizing that the Democratic Party is a better choice. The Texas Republican Party is going backward in respect to Latino issues. This is just the tip of the iceberg.”

I tend to agree with Texpatriate that this says more about the state of the Bexar County GOP than it does about the state party. We’ve seen this movie before – it happened here in Harris County in the 90s as the GOP was taking over the judiciary, and in Dallas County after the 2006 Democratic wave. There’s already the usual rumblings on the R side about moving away from partisan elections of judges, which will only grow louder if Bexar and especially Harris have blue sweeps. You already now how I feel about that so I’ll spare you a rehash, I’ll just say again that there was no comparable level of angst during the red tide of the 90s, in Harris and elsewhere. I’ll stipulate that partisan judicial elections are not the optimal system, I’ll freely admit that some good judges are at risk of losing, I just don’t plan to feel sorry for anyone.

By the way, Judge Key has said that he didn’t make the switch for political advantage, but because he felt he “had” to do it. I don’t doubt his feelings about this, and frankly I hope there’s a lot more like him who feel that way, but I do think he’ll be better off as a Dem in Bexar County in 2014 and beyond. Consider it a nice alignment of the personal and the political.

Also of interest is the bit about the challenger to longtime Bexar County DA Susan Reed. This earlier story has some background on Therese Huntzinger.

In 1989, as a young prosecutor, she defied an order from then-DA Fred Rodriguez that she give up her pursuit of a witness-tampering indictment against one of Rodriguez’s friends and political sugar daddies. When Rodriguez responded by firing her, she filed a whistle-blower lawsuit against him and won a settlement from Bexar County.

Her dramatic fight against Rodriguez attracted the attention of “60 Minutes” and the Lifetime Network, which flirted with the idea of creating a movie about her life. The issue also helped Rodriguez’s 1990 challenger, Steve Hilbig, knock off the incumbent district attorney.

When Hilbig took office, he instantly made Huntzinger part of his prosecutorial team.

[…]

[DA Susan Reed] faced a serious general-election challenge in 2010 from well-funded defense attorney Nico LaHood, but a race against Huntzinger would present the brassy DA with a whole new set of messaging challenges.

For one thing, Reed wouldn’t be able to argue, as she did with LaHood, that Huntzinger lacks prosecutorial experience. Huntzinger has 13 years of work in the district attorney’s office on her résumé, in addition to 15 years as a defense lawyer.

More importantly, Reed will be unable to deflect criticism of her own record by making the election a referendum on her challenger, as she did in 2010, when she verbally pummeled LaHood over his 1994 bust for aggravated delivery of Ecstasy.

Huntzinger said her roots in the Democratic Party extend back to her grandfather, who was a union leader in the stockyards. But her whistle-blowing crusade against Rodriguez, a Democrat, and subsequent work in the office of Hilbig, a Republican, prompted local Republicans to draft her to run for district judge in 1998.

“I stepped out of my Democratic shoes for that race, I lost, and I’m fitting back into them,” Huntzinger said.

Huntzinger suggests that Texas would be better off with nonpartisan judicial and DA races but adds that she has determined in recent years that the Democratic Party is a “better fit” for her. Huntzinger is open about being a lesbian, and the GOP’s negative stance on same-sex relationships has surely been a factor in her break from the party.

Huntzinger contends that even some Republican loyalists are eager to see a change in the district attorney’s office.

“(Reed) believes that you’ve got to bring your toothbrush to the courtroom for every single case and expect to get hit with a hammer,” Huntzinger said. “Well, there’s more to prosecuting than that.”

That ought to be a race worth watching. In the meantime, I submit to you that regardless of what may be going on in Bexar County, this story is related to these two.

State Rep. Steve Toth, R-The Woodlands, said on Monday he will run to replace state Sen. Tommy Williams, R-The Woodlands, who announced his resignation earlier this month.

In a press release announcing his candidacy, Toth, a Tea Party conservative, emphasized the need for “conservative advocates” like U.S. Sen. Ted Cruz who will “go against the tide and stand for what is right no matter the consequences.”

“As Ted Cruz has courageously demonstrated, simply being a conservative vote is no longer enough,” Toth said.

We’re a ways away from seeing switches at anything but the urban county level, but the more tightly the GOP binds itself to Ted Cruz and his blinkered, unbending zealotry, the closer that day comes. A statement from the TDP is beneath the fold, and BOR, EoW, and PDiddie have more.

(more…)

Money in judicial races isn’t about partisanship

Dan Patrick isn’t the only one seeking to change how we select judges in Texas.

Rep. Justin Rodriguez

Freshman state Rep. Justin Rodriguez, D-San Antonio, is an attorney who has been frustrated for years by this state’s hyper-political process for selecting judges (and the big money that flows into those races), and he was tempted to prescribe a specific remedy during his first legislative session.

Rodriguez is a political realist, however, and he knows that any attempt to reduce the partisanship in our political system will itself be perceived as a partisan act. So he took a different course.

Rodriguez filed legislation Thursday that would create a bipartisan interim committee to study all options for improving the selection of state appellate and district judges. The committee would consist of five senators and five representatives and present its recommendations to the Lege at the beginning of the 2015 legislative session.

“I had a little bit of heartburn over this (bill), because I’m not the kind of guy who likes to study the life out of things,” Rodriguez said. “But realistically, this had the best chance of passing, and it starts the dialogue.”

It’s a dialogue that definitely needs to happen. This state is one of only six that continues to elect its supreme court justices in partisan races, and partisan judicial races tend to attract the most fundraising money. Between 2000 and 2009, $211 million in contributions flooded into state supreme court races in the United States, a 150 percent jump from the previous decade, according to a 2012 report by the Center for American Progress.

This culture of big-money bench manipulation inevitably seeps into appeals- and district-court races, with individual candidates standing in for the competing interests of the progressive Texas Trial Lawyers Association and the conservative Texans for Lawsuit Reform.

Removing party labels from judicial races wouldn’t be a panacea, but it likely would reduce bundling by large-scale party donors and lift some of the pressure that Texas judges feel to follow the party line.

Once they’re elected, a retention-election system could keep judges accountable by allowing constituents to decide whether they can stay on the bench. It might also alleviate the all-too-real nightmare of grandstanding Texas district judges sentencing 18-year-old kids to eight years, with no chance of parole, for graffiti and pot possession charges.

“If justice is truly blind, then we have to figure out a more sublime way of selecting the referees in these matters,” Rodriguez says. “I wish I could tell you what the silver bullet is, but I’m hopeful with this bill we can have a good debate on it.”

Rep. Rodriguez’s bill is HB 2772. I appreciate that Rep. Rodriguez doesn’t claim to already have an answer, unlike some people, but I continue to not understand the fascination with non-partisan and retention elections. As I’ve said before, I don’t see how the money disappears if the partisan labels go away. Labels or no labels, the money will be there because the interest in the outcomes will be there. It’s true that TLR tends to fund Republicans and TTLA tends to fund Democrats, but that’s because each group’s interests tend to align with the parties in question. TLR pours plenty of money into Democratic races as well, as we saw in the recent SD06 special election, because they seek to maximize their influence. If Democrats start dominating statewide races like Republicans have been doing, I guarantee you TLR will be right there backing the candidates that they think will be the most amenable, or the least hostile, to their interests. It’s the way of the world. If you want to change that, you have to take the money out of these races, which is an impossible thing to do in a post-Citizens United world.

Maybe I’m missing something. Maybe there is a way to truly blunt the influence of big campaign financiers that won’t run afoul of current law and precedent and which still allows the election of judges, if that’s what you want. I’m having a hard time seeing any path that doesn’t lead to an appointment system, if there is no change in campaign finance law. But maybe I’m wrong, and maybe Rep. Rodriguez’s study will come up with something that I’m not seeing. I doubt it, but it can’t hurt.

Jefferson pushes for judicial reforms

Most of what Texas Supreme Court Chief Justice Wallace Jefferson had to say to the Lege during his biennial address was good stuff that I hope the Lege will heed.

Wallace Jefferson

Presenting his State of the Judiciary speech to Texas lawmakers, Jefferson said that “wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free” and recommended the Legislature create a commission “to investigate each instance of exoneration, to assess the likelihood of wrongful convictions in future cases, and to establish statewide reforms.” He cited the recent exoneration of Michael Morton, who spent nearly 25 years in prison for murder.

The creation of such a commission nearly passed in 2011, but failed at the last minute. Part of the opposition has come from Jeff Blackburn, chief legal counsel of the Innocence Project of Texas, a nonprofit organization that attempts to overturn wrongful convictions and investigate why they happen in the first place. He said recently that such a commission would have to be “extremely well-funded,” and would more likely become “a paper commission that would give a lot of people an excuse to turn away from a lot of the real issues we face in the criminal justice system.”

But the bill creating such a commission, House Bill 166, by state Rep. Ruth Jones McClendon, D-San Antonio, got a favorable review from the House Criminal Jurisprudence Committee on Tuesday.

Jefferson also pushed for indigent defense and more money for civil legal aid. “We must do more,” he said, “to keep the courthouse doors open for all of our neighbors.” He called on lawmakers to increase the amount of funding dedicated to organizations that provide indigent civil legal aid and criminal defense.

Jefferson touted reforms in creating an electronic filing system to lessen the use of paper in courts statewide. “Our courts operate much like they did in 1891,” he said, “with paper, stamps on paper, cabinets for paper, staples, storage, shredding of paper.” He backed Senate Bill 1146, by state Sens. Royce West, D-Dallas, and Robert Duncan, R-Lubbock, to decrease the cost of electronic filing, which he called “a key to ensuring access to our judicial system.

“The era of big paper is over,” he said, prompting laughs and applause from lawmakers.

Finally, Jefferson announced the creation of a special committee of the Texas Judicial Council to look at reforming the state’s guardianship system, in which court appointees make decisions and manage the interests of incapacitated individuals. “An exploding elderly population will stress the guardianship system,” he said. “We must begin to address these issues and prepare.” Currently, he said, Texas has 368 state-certified guardians handling 5,000 guardianships. The number of individuals needing guardianship, he said, is 40,000.

The Statesman has more:

Jefferson also criticized the practice of writing Class C misdemeanor tickets for disruptive conduct in Texas schools, forcing children to answer the charge in court and leaving some, particularly those who cannot afford a lawyer, vulnerable to arrest and a criminal record.

About 300,000 such tickets are written each year, he said.

“We are criminalizing our children for nonviolent offenses,” Jefferson said. “We must keep our children in school, and out of our courts, to give them the opportunity to follow a path of success, not a path toward prison.”

Bills that have been filed to address these concerns are SBs 393, 394, and 395, all by Sen. Royce West. Everything mentioned here by Justice Jefferson is something I support. My only complaint is this:

Another regular feature of these speeches is a call for lawmakers to revisit the way judges are selected. Currently, the judges are elected in partisan contests. “A justice system based on Democratic or Republican judging is a system that cannot be trusted,” Jefferson said during his last speech before the Legislature.

This session, several bills aim to address this issue. State Sen. Dan Patrick, R-Houston, has filed SB 103, which would end straight-ticket voting in judicial elections, where a single selection of Democrat or Republican at the top of the ballot carries through elections for all offices, including judges. Two years ago, Jefferson explicitly called for this policy change, saying straight-ticket voting led to “hordes of judges replaced for no good reason.”

*sigh* You know how I feel about this, so I’ll spare you another rant. Let’s just say I hope the rest of Justice Jefferson’s agenda gets a higher priority from the Lege than this does. Grits and EoW have more.

A Republican view of 2014 in Harris County

Big Jolly is feeling pessimistic about his team’s chances in Harris County next year.

Now let’s look at who will be on the playing field for us. There will be a lot of statewide action, with unknown Dems – let’s ignore them for now. Sen. John Cornyn is a good conservative senator but at this point, I don’t see anyone rushing out to vote for him. Abbott in the governor slot will draw a few people out but Harris County isn’t his base and remember that the Dem won Harris County in 2010. Who knows with Lt. Gov., but again, I don’t see any excitement.

So drop down to county races. Once again, it will be up to Harris County Judge Ed Emmett to carry the load and pull a terrible field with him. Problem is, there is a large faction (let’s call them the SD7 bunch for now) that are begging people to run against him in a primary. And frankly, if they get the right candidate, Ed’s in trouble. As we saw this year when Mike Anderson damaged the party by defeating Pat Lykos, it is difficult to recover from a nasty primary at the top of the ticket. If Ed survives the primary, he’ll be fine in November but not able to carry the field with him. If he doesn’t survive the primary, say hello to County Judge Democrat.

County Clerk Stan Stanart has had problems running the office and the people he’s hired are suspect. I’ve heard rumors that former District Clerk Charles Bacarisse will challenge him in the primary – if so, that would certainly make for a stronger ticket but those are just rumors. Personally, I’d like to see former candidate for State Rep 149 candidate Jack Lee take a crack at it. If Stan is on the ballot again, he’ll go down.

District Clerk Chris Daniel has done a good job and is out in the county every day talking up the office. That hasn’t stopped people talking about challenging him in a primary. The most prominent name I’ve heard is former HCRP Executive Director, now some sort of communications guy for Commissioner Steve Radack, and miracle survivor of a plane crash, Court Koenning. Regardless of the candidate, this office will probably switch to the D’s.

Then, you have a problem with some gosh awful incumbent judges (who will cost some very good incumbent judges their bench). I, and many of us in the party, will not push a “Vote Straight R” message unless these judges are upset via the primary, which is a very difficult thing to do. The Straight R campaign has been the bedrock of the last two campaigns – without it, we’re going to lose a few points and certainly increase the down ballot undervotes. Imagine a Harris County judicial system 75% in the control of Democrats because that is what it will look like after 2014.

Combine all this and BAM!, Harris County Republicans have got a real problem. Just a little straight talk for your weekend.

As I see it, the Republicans have three advantages going into 2014, and three disadvantages. On the plus side:

1. All those non-habitual off-year voters who came out for them in 2010 must now be considered to be likely voters. Voting is a habit, and all those people now have a track record of voting in non-Presidential years. Even with some amount of dropoff, that’s huge. They can all be identified and targeted by Republican campaigns, which will make GOTV efforts that much easier and more accurate. As I said before, we can’t know for sure how many people were responding to a unique political environment, but the simple fact is that the political universe expanded, and that’s going to have an effect going forward. Any discussion of 2014 needs to take this into account.

2. Ed Emmett has the best political brand in the county. He’s established a reputation for being a low-drama get-things-done type who works well with others, and he still has the luster of his performance during Hurricane Ike. Only Sheriff Garcia is in his class for attracting crossover support. As I said in my early look at 2014, I’d consider him a favorite in any scenario outside of a 2010-style wave for the Democrats. If I were a Republican running for county office in 2014, I’d grab onto Judge Emmett with both hands.

3. It remains the case that Republicans start out with a turnout advantage in off years. 2010 was the extreme edge of this, but even under normal conditions they have the edge in likely voters. That won’t last forever – one can argue that it already won’t be the case in Harris County in 2014 – but until demonstrated otherwise, this is how it is.

So they have those things going for them, which is nice. On the down side:

1. Demography, demography, demography. The GOP is the party of white people, and white people are shrinking as a share of population in Harris County. Remember, Democrats had decent turnout in 2010, and despite a perceived advantage in enthusiasm last year, Republicans still lost most of the judicial races and had a countywide incumbent get knocked off. If the HCDP has a decent turnout plan, and if there’s anything to all that talk about a national investment in Texas Democrats, the Harris County GOP could well be in deep trouble.

2. Infighting and personality conflicts are always a problem, but I think the Republicans have bigger issues here than the Democrats do. This is partly because they’d been in control for so long – if your opponent can’t put up a decent fight, you’ll eventually start fighting among yourselves – and partly because of the same forces that have riven the Republican Party around the country. Big Jolly is more in tune with that than I am, so I’ll just say that primarying Emmett would be nuts. Jolly is right – if the GOP wants to hand that office over, go right ahead and take Emmett out next March.

3. Fears of contested primaries, even acrimonious ones, holding down turnout in November are generally overrated. Elaine Palmer won a nasty, divisive primary against Judge Steve Kirkland last year, but that didn’t stop her from winning in November. That said, Republicans tend to have higher rates of undervoting in downballot elections – 2010 was the exception to this – so they are more vulnerable to these issues. With the exception of the two HCDE At Large offices that are on the ballot plus Judge Jim Sharp, the Republicans are playing defense up and down the ballot, and that’s harder to do. It’s hard to know what the national mood will be like in another eighteen months, but a repeat of 2010 sure seems unlikely. Anger is a strong motivator, but it burns out after awhile. Again, I think Jolly puts his finger on the issue – what exactly will motivate Republicans to go to the polls next year? The scenario to ponder is not 2010 but 2006, when GOP turnout lagged statewide. That could have some interesting implications, but let’s not get ahead of ourselves. Point is, I can think of lots of things that may wind up driving Dems to the polls next year. That’s something for the GOP here to be concerned about.

Election Day in SD06

It’s highly unlikely that this will settle anything, but today is Election Day in SD06. If you live in SD06 and have waited till today to cast your ballot, you can find your polling place here or here. I’ve already done my spiel about turnout and finance reports, so let’s see what the media has to say. Here’s the Texas Trib:

Alvarado and Garcia have campaigned at breakneck speeds after Perry officially announced Saturday’s election date on Dec. 13. The ensuing weeks have seen several candidate forums and fundraisers.

The most recent campaign finance filing period ended Jan. 18, with Garcia reporting about $164,000 raised since Jan. 1, expenditures of $300,000 and about $228,400 remaining in her war chest. A pre-election telegram report, which is filed to report contributions received after the date of the last report, shows Garcia raised an additional $14,500.

Alvarado raised about $185,000 during the same time period, spent about $315,000 and has about $110,000 left on hand. She also raised about $20,000 after the filing date, according to her telegram reports on file with the Texas Ethics Commission.

The Houston Chronicle reported Wednesday that plaintiff’s attorney and Democratic donor Steve Mostyn provided a bulk of Garcia’s support. Mostyn has donated more than $200,000 to Garcia throughout the course of the campaign, including about $187,000 in in-kind contributions from Mostyn’s Texas Organizing Project PAC.

The publication also noted that Alvarado received $22,000 from the Houston Police Officers Union and a $15,000 donation from HillCo lobbyists in Austin.

[…]

Garcia also hit Alvarado after the representative touted an endorsement from Stand for Children, an education advocacy group that Garcia said supports school vouchers.

“Sylvia Garcia strongly believes in fully funding our public schools, not using those dollars to help wealthy private schools take money away from our children,” Guerra said in a statement.

Hitting back, Alvarado said she has always supported public education and is on the side of educators and school districts.

“I am a product of HISD,” she said. “If there is any doubt on where I stand on public education, look at my voting record. I am the only one in this race with a record.”

In her release, Garcia includes a link to a document on the Stand for Children website called “What We Stand For: School Choice.”

“This paper begins with an overview of existing choice programs and a discussion of the current evidence available on these policies and their impact on student outcomes and equity,” the researchers write.

Calls to Stand for Children seeking clarification on where the group stands on the issue of vouchers were not immediately returned.

“School choice” means different things to different people, but I have zero doubt that Alvarado would oppose vouchers. There’s nothing in her record or her rhetoric to suggest otherwise. It would be nice to get some clarity from Stand For Children on this, but this will not keep me awake at night.

More from the Chron:

Alvarado said she was focusing on the issues the district’s voters care about: education, the economy and jobs, health care.

“We’re knocking on doors, phone-calling and keeping on message,” she said. “I’m happy we haven’t lowered ourselves into the gutter the way our opponent has.”

Garcia rejected the negative-campaigning charge. “Any time you compare a record – and that’s all we’re doing – your opponent will say you’re going negative. We’ll just have to let the voters decide.”

Whatever you think about the race so far, any real nastiness will come out in the runoff. That’s just how the world works.

[Dorothy] Olmos, who ran an unsuccessful campaign for the State Board of Education in 2010, said she is working her ground game, as well.

“We’re knocking on doors and beating the bushes,” she said.

Olmos, a former teacher and hair salon operator, noted that she received 80,000 votes in the general election for the State Board of Education, 35,000 from Senate District 6.

Dream big, Dorothy. RW Bray got 38,201 votes in SD06 in November, and that’s about twice as many votes as will be cast in total for this race. As a point of comparison, Lawrence Allen, the incumbent Democrat in SBOE 4 that Olmos opposed in 2012, got over 77,000 votes in SD06. And just to fully beat this into submission, by my count there were 27,556 straight ticket Republican votes cast in SD06. This means that nearly 80% of Dorothy Olmos’ vote total in SD06 came from straight ticket voters, of which there will be none today, and that just under 7,500 people made the deliberate and conscious choice of voting for Dorothy Olmos last November. Of course, if she were to match that vote total in this election, she’d be a near lock for the runoff, but I feel pretty confident saying that ain’t gonna happen. I’ll have a brief post about who does make the runoff tonight and a fuller one tomorrow morning. Stace has more.

UPDATE: It will be Sylvia versus Carol for the runoff. No surprises at all.

A personal view of judicial elections

I’ve mentioned in this space before that my father Charles A. Kuffner, Jr. was a Supreme Court justice in New York. (Note: The Supreme Court in New York is basically the equivalent of a District Court in Texas. The top court in New York is the Appellate Court.) He was elected to that position in 1982, and lost his re-election bid in 1996. (Yes, they have 14 year terms in New York.) As you might imagine, he has followed my series of posts about judicial elections with interest, and while discussing it in a recent phone conversation, I encouraged him to write about his experience for publication here. Here’s what he sent me:

Is there a best way to select a Judge?

I have had this discussion with my son and many others over the years. Since I have been exposed to both the election of Judges and the selection process for the Judiciary I offer this commentary.

Both systems have their obvious flaws but over all I prefer the election of Judges with some limitations. Let me tell you my experience.

In 1982 the State of New York funded additional Judgeships Statewide with 13 new positions for the 2nd Judicial Department, Brooklyn and Staten Island. The political leaders worked out a formula, 10 Democrats, 3 Republicans, 2 Republicans from Brooklyn and 1 for Staten Island. (Staten Island was included since the Senate Finance Chair was from Staten Island).

A joint committee selected by the politicians interviewed all candidates and if approved the person would run in November dually endorsed by the Brooklyn Democratic Party and the Republicans. You should know that without the Democratic endorsement a person had no chance for election.

12 Republicans interviewed from Staten Island, but for one reason or another consensus could not be reached. I was candidate #13 and interviewed just before the judicial convention. Previously, I was on that screening committee and was not a candidate for the position. I was passed by the joint committee and was elected in 1982, and served from 1983 until 1996.

In 1996 I sought the Democratic dual endorsement, which previously was automatic, but denied that endorsement. I ran as a Republican and was defeated. A little history; I was endorsed by every Bar Association in the district as “Highly” qualified and even a “Highly” qualified rating was obtained by the umbrella group representing the “white shoe” lawyers. Interestingly, I was the only trial court Justice to received the “highly” qualified rating. Even with these credits, along with being President-elect of the Association of Supreme Court Justices, it meant nothing to the straight line Democratic voters in the 2nd judicial district. Add to that was my reversal rate after trial which was about nil.

I then applied to the State and the City for an appointed judicial position. I interviewed at the State level and even though I had an affirmance rate after trial of about 98% I was not recommended to Gov. Pataki. More history; I opposed the Pataki plan to limit judicial discretion in sentencing defendants and was so quoted in the New York Times.

The appointment process for the NYC Criminal Courts mirror that of judicial selection set up I originally went before when I was elected in 1982. I came out of the Mayor’s committee as recommended and was even interviewed by Mayor Giuliani but all for naught. I was not appointed: thus ended my judicial career.

Reality check: there isn’t a major party leader that will give up the power over judicial candidate selection whether by election or appointment. Jobs are the life blood of political parties and judicial patronage appointments mean untold millions of dollars that find their way back to the party in power. From my own experience I can tell you that every mortgage foreclosed meant at least $500 to the lawyers I appointed as referee to sell; for every commercial property that goes into foreclosure, a receiver is appointed to collect rents, etc. That fee is usually 5% of monies collected. For every person in need of guardianship, a lawyer is appointed as an evaluator and is paid a percentage of the estate to be managed; in the Probate courts the amount of patronage paid to politically connected lawyers is staggering. Need I say more?

If I had to recommend a system for appointment of judicial candidates, I would have as a committee membership roster, Court employees who work in the Courts where the vacancy exists; lawyers who routinely practice in that court; former jurors who sat for trials and a psychiatrist/psychologist. Why these folks? Easy, court employees are keen observers and evaluators of courtroom demeanor; lawyers want to practice before a colleague whose work habits and scholarship are known; jurors because they also have 1st hand knowledge of the stresses and strains in a courtroom during trial and lastly mental health professionals who can gauge the all important qualifications of demeanor, temperament and character of the candidate.

Once the candidate or candidates are selected they are appointed and sit for 2 years and then run for a longer term in a non-partisan election on their record.

Pie in the sky? You bet, but if you want to eliminate party politics from the Judiciary radical changes have to me implemented.

So there you have it. The system is a little different in New York, but the parallels are obvious enough. Again, my point is not to defend the status quo but to point out that the question of how best to do this is complex, and we are not well served by simplistic solutions such as eliminating straight-ticket voting for judicial races. More discussion is needed, and I hope I’ve provided some useful items towards that end.

Once more to the judicial elections well

I swear, I thought I was done talking about judicial elections, at least for now until one or more of the bills that would affect them comes up in the Lege, but then there was this op-ed in the Chron, and I just couldn’t help myself.

In states across the country, the selection of judges has become increasingly political. Big money is pouring into state judicial elections, much of it coming from special interest groups that do not disclose their sources of funding. In 2012, of the $28 million spent on TV advertising in certain state supreme court elections, more than half was spent by outside groups unconnected to a candidate. In Michigan, where three state supreme court seats were on the ballot, 75 percent of the nearly $15 million in TV advertising was spent by outside groups that invested heavily in attack ads.

I’ve said repeatedly that I consider the influence of large campaign contributions and expenditures to be a much more pernicious threat to the judiciary than any partisan or straight-ticket issues. I’m glad to see op-ed authors Dennis Courtland Hayes and Martha Hill Jamison recognize this. But as is so often the case when an op-ed writer raises the point, they then never get around to discussing what if anything can and should be done about it. As I’ve also said, it may well be that in a post-Citizens United world, there isn’t a damn thing that can be done about this. But if that’s the case, then we all ought to be honest about it and couch whatever other reforms we’re proposing in terms of how they may or may not be affected by free-spending individuals and interest groups. How much different will non-partisan elections or judicial retention elections be if, say, Texans for Lawsuit Reform is free to spend millions of dollars touting the candidates they like and attacking the ones they don’t?

In Harris County in 2008, 19 incumbent judges were defeated in one election, not necessarily based on experience, knowledge, fairness or legal ability, but simply because they were identified with one party. In 2010, the sweep was reversed. Party-based sweeps have affected communities across Texas. This year, 11 of 12 judicial races in San Antonio were won by candidates of a single party. In her Nov. 16 Chronicle column (“Bill aimed at ending judicial campaigning worth a try,” Page B1), Patricia Kilday Hart cites former Texas Supreme Court Chief Justice Tom Phillips’ estimation that partisan sweeps caused by straight-ticket voting have defeated more than 100 district judges statewide.

I really don’t intend to inflict any further beatings on this particular horse, but I missed Phillips’ comments in Hart’s column the first time around, so let me address it here. I’d like for him to be more specific about who exactly lost elections in that past decade due to straight-ticket voting. As we’ve discussed before, it’s not straight-ticket voting that matters so much as it is the general partisan preference of a given county or the state as a whole. By the way, only two of the judicial candidates on the ballot in 2010 in Harris County were incumbent Democrats – Dion Ramos and Kathy Stone, both of whom had won elections for unexpired terms in 2008. I can only imagine the wailing and gnashing of teeth that would have ensued if political conditions in 2010 had been more like 2008 or 2012, or hell even 2006. We may find out in two years if the system hasn’t been radically changed by then.

One change that could reduce the role of politics in judicial selection, which is the subject of legislation filed by Sen. Dan Patrick in the Texas Senate, would be to remove judges from the system of straight-ticket voting. This would require voters to make choices in individual judicial races, rather than simply voting for an entire party roster.

The proposal has potential benefits and drawbacks. It would likely prevent political party sweeps of the bench. Unfortunately, it’s also likely to drive down voter participation in judicial elections. Election data show that nationally, approximately a third of voters neglect to vote in down-ballot races.

At least Hayes and Jamison don’t accept Patrick’s bill as That Which Will Solve All Our Problems, for which I’m grateful. But look, isn’t it obvious that if judicial races are exempted from straight-ticket voting, local parties and other interested bystanders will adjust their behavior and tout or oppose judicial candidates by name? If anything, Sen. Patrick’s bill will encourage more money to be spent on judicial races because it will be harder (read: more expensive) to advocate for or against whoever you want to win or lose. Same thing if judicial races are all made non-partisan. I concede that it’s probable that fewer people will vote in judicial elections under these conditions, and if so then those races are at least somewhat more likely to be decided by voters who are more informed about those races, which I suppose is a step in the direction that Judge Mark Davidson advocates. But again, if the goal is simply to get fewer people to vote in a given election, we should at least be honest about that and not hide behind platitudes and palliatives about partisanship. The logical conclusion here is to do away with judicial elections altogether, and indeed Hayes and Jamison do call for a merit appointment system, though they don’t get into any details about how that might work for the 2000 non-municipal judges statewide or what its pros and cons might be. Maybe the real problem here is that this issue is just too complex to be adequately explored in a 500 word newspaper op-ed.

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.

Straight ticket voting and judicial races elsewhere

You may be wondering, after reading my post about straight ticket voting and judicial races if the same thing is true in counties other than Harris. I got to wondering that myself, so I checked out the results from a dozen other counties for 2012.

County ST Advantage Contested Races Closest Win # Affected ================================================================== Dallas Dem 92,456 3 93,810 0 Tarrant GOP 66,682 0 N/A 0 Bexar Dem 24,711 12 11,209 2 Travis Dem 53,480 0 N/A 0 Collin GOP 72,239 0 N/A 0 Denton GOP 59,348 0 N/A 0 El Paso Dem 47,483 1 48,038 0 Fort Bend GOP 11,754 2 19,530 0 Galveston GOP 17,799 0 N/A 0 Hidalgo Dem 51,644 0 N/A 0 Williamson GOP 17,939 0 N/A 0 Jefferson Dem 11,646 1 17,546 0

I only looked at District and County Court races for this study. “ST Advantage” is the difference between the straight-ticket vote of the dominant party, which I’ve listed to its left, and the other party. For example, there were 92,456 more straight-ticket Democratic votes cast in Dallas County than there were straight-ticket Republican votes. “Contested races” is the number of judicial races in which there was a Democrat and a Republican. “Closest win” is the smallest margin of victory for the party with the straight-ticket advantage. Note that in Bexar County there was one victorious Republican judicial candidate. “# Affected” is the number of contested races in which the margin of the closest win is less than the straight-ticket advantage. In other words, that’s the number of races for which the straight-ticket margin was decisive. I didn’t count that one Bexar County race because that particular Republican was able to overcome the straight-ticket advantage, and thus wasn’t affected by it.

So, what we learn from broadening our search is that there’s a total of three races in which straight-ticket voting arguably affected the outcome of a judicial election. I say “arguably” because in order to believe this, you have to believe that sufficiently more of the winning party straight-ticket voters would have failed to vote in these races than the losing party’s straight-ticket voters, which is at best a questionable and unprovable proposition. But if you believe it, then in thirteen of the biggest counties in Texas, there are three fewer Republican judges than there would have been if Dan Patrick had his way. I should note that Paul Sadler carried El Paso and Hidlago by less than the straight-ticket margin, so there could at least theoretically have been some other examples if there had been contested races. This is not the same as thinking such races might have been competitive – these are deep blue counties, as Democratic as Collin is Republican, and as likely to elect a Republican as Collin is a Dem. The one true recruitment failure was in Jefferson County, where despite the straight-ticket advantage President Obama barely won a plurality, but one Democratic judge there drew no opponent.

Maybe you think this is a big deal, worthy of a high-profile bill and much fawning media coverage. I think it’s much ado about nothing, and would do nothing to improve the process of how we make judges. The thing that really stood out to me as I looked through this data is just how few contested judicial races there were. Outside of Bexar and Harris – not coincidentally, two of the more evenly-matched counties in the state – hardly any November judicial action. I didn’t check to see how many judicial races were settled in the primaries – sorry, I’m not that obsessed with this topic – but I do agree that primary party politics are not conducive to good judge-selection. Does that mean making judicial elections non-partisan is a good idea? Personally, I don’t think so. Houston city elections are officially non-partisan, but everyone knows who the Rs and the Ds are, and I daresay that’s how it would be in “non-partisan” judicial races. Besides, look at it this way: If I’m a District Court judge in, say, Collin or Travis County, and I have a November opponent, I don’t have to emphasize my partisan credentials. The “R” or “D” next to my name on the ballot will do that for me, and I’m free to talk about my experience and qualifications or whatever else I want to put on my mailers. But in a non-partisan race, my party affiliation is exactly what I need to emphasize, since my surest path to a win is to ensure that my fellow partisans know who’s who on the ballot. I’d expect that to happen even in balanced counties, because your team are your most reliable voters, and indifference to downballot races is at least as big a concern as the other guy’s team is. I don’t see a way around it.

Well, we could do away with judicial elections and go to an all-appointment system. This is first of all a philosophical question: Either you believe that judges should be elected by The People, or you believe they should be selected by a person or a committee. If you prefer the latter, then it’s primarily a matter of logistics. As I noted before, there are nearly 2000 non-municipal judges statewide, so just coming up with a system that can handle that big a workload is a big deal. I trust we can all agree that letting Rick Perry appoint judges, or even letting him appoint the appointers, is a bad idea. I’m sure there are workable ways of doing this, but I’ll leave the details to someone who buys into the idea. If you want to have a system of appointments with retention elections, I’ll just note again that all of the usual suspects that play in judicial races would still be free, and likely, to play in these elections as well. What, if anything, is the plan to deal with that?

Which brings me back to the point that I’ve been trying to make since the subject of partisan judicial races first came up in 2008 after Democrats first demonstrated the ability to win them in Harris County: The biggest problem as I see it is the influence of money on judicial races. That’s why I get so frustrated by phony solutions like Sen. Patrick’s and the accolades he gets for it from people who need to think it through more completely. I’ve seen this bill described as a “good first step”, but I have to ask, a step towards what? What’s the second step, and what’s the ultimate goal? In the meantime, what are we going to do to limit the influence of bad actors like Texans for Lawsuit Reform, strip clubs, and George Fleming and their money on the judicial selection process? I’m certainly willing to accept that our process of partisan judicial elections is deeply flawed, but if your solution doesn’t address the points I’ve raised I’m just not going to take it seriously.

Pity the poor judges

It’s hard out here on a judge.

For longer than anyone remembers, you had to be a Democrat to be a district judge in Texas – or just about any other political office. When the Democratic Party split apart in the South over civil rights, Republicans gained the upper hand, so much so that by 1998 you had to have an “R” next to your name to have a shot at statewide office.

Recent election results show little change overall for the Lone Star State, still known as the reddest of the red. But in its largest metropolitan area, a new look is emerging. If the latest general election is fair measure, Harris County today is a brilliant, deep purple, almost evenly split between the two major parties.

And nowhere does that cause more discomfort than the county courthouse, where judges suddenly find themselves with none of the job security that has often accompanied the job. Partisan dominance meant that if you reached the bench – often via political appointment – you had a reasonable chance of staying there for awhile. Now local judges are buffeted by political winds beyond their control, and they face the distinct possibility of losing their job just as they have figured out how to do it.

Former Judge Mark Davidson, who often ranked at or near the top in local judicial polls, lost his bench in the Barack Obama tidal wave of 2008. He does not like what he sees now, with a polarized electorate voting along party lines, and he has no intention of running again soon.

“To run and know it doesn’t matter anything about my or my opponent’s qualifications – that the outcome may be determined by who is on the top of the ticket and people will vote on criteria other than my service as a trial judge – is not something I choose to do,” Davidson said.

[…]

What that means for the future is unclear, in part because it’s unfamiliar territory. Former Texas Supreme Court Justice Scott Brister, who spent more than a decade as a district judge in Harris County, predicts it will be harder to recruit good potential judges because of the uncertainty factor. If races are going to be narrowly decided and influenced heavily by the names at the top of the ticket, why would a successful, talented lawyer give up a comfortable practice for less pay and more risk?

“In a close county like Harris County is now, being an incumbent doesn’t help you,” Brister said. “The odds are 50-50. You leave your practice and will be making less money, and you have to be constantly worried whether you will keep the job. If you lose after one term, all your clients are gone to somewhere else and you have to build your practice all over again. That makes it real difficult to convince someone to run.”

Of course, one way to solve this would be to go back to the good old days of one-party dominance in Harris County. I sure don’t remember all this hand-wringing about how hard it was to be a judge, never knowing what the voters might do to you, back when the November elections were pre-determined. If nothing changes about how we make judges and the Democrats sweep the judiciary in 2016, thus providing a third term to all those judges that were re-elected this year, will that make Mark Davidson and Scott Brister happy? Mark Bennett makes hash of Davidson’s complaint.

The story then predictably goes into straight-ticket voting and Sen. Dan Patrick’s bill to eliminate it for judicial races, which has the hearts of people like Patti Hart and the Chron’s editorial board going pitter-pat. One of the many ironies of all this is that of the 32 district and civil court judicial races in which the Chron made an endorsement this year, 25 of their preferred candidates won. That’s a 78% success rate, which ain’t too shabby for a bunch of lazy, ignorant voters, as they so nicely characterized the straight-ticket people.

Another irony for you: As Mark noted in his post, the straight ticket vote for each party this year basically canceled each other out. Indeed, the Democratic advantage from straight ticket voting in 2012 was a paltry 2,836 votes – 406,991 to 404,165 in favor of the Democrats. Would you like to know how many Democratic judges won re-election by 2,836 votes or less? Exactly one: Kyle Carter of the 125th District Court, who remained a judge by 1,694 votes. Every other winning Democratic judge had a margin that exceeded the straight-ticket margin: Michael Gomez, the next closest winner, won by 4,071 votes, Jaclanel McFarland won by 5,083, and Ruben Guerrero, Mark Bennett’s least favorite judge, won by 9,015. Every other victorious Democrat won by a five-figure margin, so if you accept the premise that only the non-straight-ticket voters really know what they’re doing, then you should be glad, because they decided all but one of the judicial races. Dan Patrick’s bill is basically about Kyle Carter.

But wait, there’s more. In those halcyon days of Republican hegemony for which Mark Davidson and Scott Brister pine, surely they were aided by straight-ticket voting dominance as well, right? Well, thanks to the magic of the Internet, we can check. Election results on the County Clerk webpage go back through 1996. Here’s how those elections went.

In 1996, straight ticket voting was as follows:

STR – 200,731
STD – 211,533

So Democrats had a 10,802 vote advantage, which did them exactly no good: The only judicial race won by a Democrat was that of Katie Kennedy, whose margin of victory was over 66,000 votes. Republicans won all the other races.

Here’s 1998:

STR – 157,516
STD – 143,783

Now the Rs have the advantage, of just under 14,000 votes. Their smallest margin of victory in a judicial race was about 23,000 votes, meaning that again, straight-ticket voting made no difference to the outcomes.

How about 2000?

STR – 260,705
STD – 264,747

Yes, believe it or not, Democrats had the straight-ticket advantage, even with George Bush at the top of the ticket. And again, it mattered not at all. There were exactly 2 contested judicial races – 337th and County Court At Law #1, both of which the Dems lost. Boy, were these the days or what?

On to 2002:

STR – 185,606
STD – 171,594

The Rs regain the advantage, and again it’s meaningless, as the closest judicial race was decided by 41,000 votes. Will straight-ticket voting ever matter?

The answer is yes, it does, in 2004:

STR – 370,455
STD – 325,097

You would think that with a 45,000 vote advantage in straight-ticket voting, that would be critical to overall Republican success. But it only mattered in one judicial race, the 334th, where Sharon McCally defeated Kathy Stone by 41,813 votes. Republicans won every other judicial race by at least 60,000 votes.

Here’s 2006:

STR – 137,663
STD – 145,865

Another Democratic advantage that amounts to diddly squat, as the Rs once again sweep the judicial races. I suppose you could put an asterisk next to Jim Sharp, who carried Harris County by 1,291 votes in his race for the First Court of Appeals, but since he lost that race it hardly seems worth the effort.

Finally, we come to the two years that everyone agrees is where straight ticket voting was the deal-sealer for the Ds and the Rs, respectively. It’s true that in 2008, the Democratic advantage in straight-ticket voting – 391,488 to 343,919 – is larger than the margin of victory for all victorious Democratic judicial candidate. But look, Democrats didn’t nearly sweep the judiciary in 2008 because of straight-ticket voting, they won all those races because more Democrats voted in Harris County than ever before, and it was that combination of juiced turnout and long-awaited demographic change that did it for them. I suppose you could argue that had the straight-ticket option been outlawed that enough Democratic voters might have quit voting before making it all the way to the end of the ballot to have let some number of Republican judges survive, but if you do make that argument can you really also claim it was because of their merit as judges that saved them? Besides, in the absence of straight-ticket voting its entirely plausible that enough Republican voters would have failed to complete the ballot to cancel things out, and we’d have had approximately the same results as we actually did. We’ll never know, and it’s presumptuous to think we do. Remember, as I’ve noted many times, there was a lot more Republican undervoting in 2004 downballot than there was Democratic undervoting. We just don’t know what might have happened.

You may be thinking at this point “But isn’t the issue that so many more votes are being cast as straight-ticket these days”? It’s true that the trend is upward, but it’s less than you might think. And despite the wailing over 2008, it wasn’t a high-water mark for straight tickets. In 2004, 64.22% of all ballots cast were straight-ticket, 698,895 of 1,088,793. In 2008, the share of straight-ticket ballots dropped to 62.20%, as 739,424 of 1,188,731 were so cast. Did you know that there were more straight-ticket votes cast as a percentage of turnout in 2004 than in 2008, the year in which straight-ticket voting suddenly became this massive problem that had to be solved? I didn’t until I did the research for this post. I’ll bet you $10,000 of Mitt Romney’s money that no one at the Chron knew it, either. As for 2012, the share was 67.91%, 817,692 out of 1,204,167. My guess is that just as there appears to be a limit to how many people will vote early, there’s likely also a limit to how many people will push the straight-ticket button, and we’re probably pretty close to it.

Oh, and in 2010, the year that straight-ticket voting supposedly gave the Republicans back the bench? They did have a huge advantage in straight ticket votes – 290,355 to 240,479 – but as it happens, their closest victory in a judicial race was just over 57,000 votes, with most races being decided by 80,000 or more. Republicans won in 2010 because they turned out at historic, unprecedented levels, plain and simple. The belief that straight-ticket voting is the key to victory is a myth, a shibboleth, and if it’s not clear by now that this is all about the 2008 results, then it’s not the straight-ticket voters who are lazy and ignorant.

I have more to say on this subject, but this post is long enough. Again, I agree that our system of making judges is problematic, but straight-ticket voting is not the problem, and eliminating it is not a solution. It’s a feel-good measure cloaking a partisan intention, and it should be seen as such.

If eliminating straight ticket voting is the solution, then what’s the problem?

With the opening day of bill-filing season comes the recurrence of a not-so-old chestnut that like many other bills is a solution in search of a problem.

Sen. Dan Patrick, R-Houston, said he wants to end straight-ticket voting for judges because the political winds often determine the fate of a judicial candidate instead of qualifications.

“Most voters have no idea of who they are voting for, for judges,” Patrick said.

Patricia Kilday Hart calls Sen. Patrick’s bill a “step in the right direction”. Sorry, but I can’t agree with that. I’ll stipulate that most voters don’t know who they’re voting for in judicial races. Unless you’re a lawyer or otherwise have regular business with the legal system, how can you possibly evaluate judges and wannabe judges? The problem I have with Sen. Patrick’s solution is that it does nothing to add to the publicly-available body of knowledge about judicial candidates. If anything, it subtracts from it. Partisan identity is a blunt instrument to be sure, but it does at least tell you something about Judge Johnson or Attorney/Candidate Smith. How is taking away that bit of information going to help the average voter know who they’re voting for?

As I see it there are more pressing problems with the way we elect judges in this state, and Sen. Patrick’s bill does nothing to address them. As I’ve said before, big players like the Texas Trial Lawyers Association and especially Texans for Lawsuit Reform, of which the state Supreme Court is a wholly owned subsidiary, will not be constrained in any way by Sen. Patrick’s proposal, or by non-partisan judicial elections, or by retention elections in an appoint-and-retain system. For that matter, the ability of a crank with a grievance against a sitting judge to finance an opponent for that judge would also be left unmolested. If the concern is about the effect of money on our judicial elections – and Lord knows, there needs to be concern about this – then making judicial elections publicly financed is likely to be the optimal solution, assuming they can withstand the inevitable lawsuit and a suitable funding mechanism can be found. If you think that electing judges at all is the problem, I can sympathize with that, but then you need to propose a system that can handle the appointment of nearly 2000 non-municipal judges statewide that isn’t likely to become a patronage mill. Again, I agree that our system of partisan election of judges is problematic. It’s just that all of the proposed solutions I’ve seen so far do nothing to actually address those problems.

Credit where credit is due

State Supreme Court Chief Justice Wallace Jefferson calls on the Lege to protect legal aid funding.

The budget crisis threatens to leave the state’s neediest without legal representation, Jefferson said, and even now “the courthouse door is closed to many who have lost their jobs, veterans and women who struggle with physical abuse.” As he asked the Legislature to appropriate $20 million in general revenue dollars for basic civil legal services, he said 6 million Texans currently eligible for legal aid have been turned away because of a lack of funding.

He also emphasized the importance of rehabilitation, psychiatric care and vocational training for juvenile offenders.”Let us endeavor to give these kids a chance at life before sending them into the criminal justice system,” he said.

He said these remarks during his State of the Judiciary address, which you can read here (PDF); he also had praise for Sen. Rodney Ellis’ innocence efforts. I’m glad to hear him say these things, and I hope the Lege listens to him.

Also of interest to me is a subject that has come up before:

Echoing his 2009 address, Jefferson also strongly criticized the state’s system of electing judges on a partisan basis. “A justice system based on Democratic or Republican judging is a system that cannot be trusted,” he said.

Possible solutions? A constitutional amendment for the merit selection of judges or, at the very least, the elimination of straight-ticket voting for judges, which he said results in judges losing elections not for “poor work or poor ethics or controversial or courageous decisions” but because of partisan tides.

I criticized Justice Jefferson about this back in 2009, when it was easy to suspect partisan motives in the wake of widespread Democratic success, so I must give him credit for bringing this up again in the aftermath of 2010. (Far as I can tell, I can’t give the same credit to Big John Cornyn, not that this surprises me.) While I’m happy to note Jefferson’s admirable consistency on this issue, I still think his proposed solutions are inadequate and don’t address the real problem at all, which is the effect of big donors in judicial races. The Supreme Court is basically a wholly owned subsidiary of Texans for Lawsuit Reform, which is now a far greater offender in this area than the trial lawyers that TLR was formed to oppose ever was. When Justice Jefferson gets around to that, then we can have a real conversation about how to make the system better. Abby Rapoport has more.

Wentworth will try again with redistricting bill

Every two years, State Sen. Jeff Wentworth introduces a bill that would take redistricting out of the hands of the Legislature.

Under Wentworth’s plan, a commission responsible for drawing new maps would be made up of two appointees selected by the majority party in both the House and Senate, and two by the largest minority party in each chamber — for a total of eight commissioners. Here’s the key to draining the partisanship: the members can’t have held either elective office or positions with a political party, other than precinct chairs, within the previous two years.

Commissioners then would select a ninth, nonvoting member.

“I continued to introduce it, trying to appeal to people’s sense of fairness,” Wentworth said. “And I tried to fight off the characterization that this was some sort of nonpartisan plan. It’s notnonpartisan — it’sbipartisan. … Of course, it’s going to be partisan. The question is, will it be bipartisan or not.”

I have no problem with this, and I think most people would at least admit that this is a fairer way of conducting this bit of business. It’s just always hard to convince the party in power that it won’t always be that way, and it’s in their best interests to do this, too. Democrats should have helped Wentworth pass his bill in the 90s when they were on top but on their way out. You can make the same case for Republicans today, but good luck with it. I expect he’ll be back in 2013 with the same bill again.

Wentworth’s bill would also eliminate straight ticket voting. I’m at best agnostic on this – if people plan to only vote for candidates from one party, why not let them save some time? In my opinion, the main effect of a bill like this would be a large increase in undervoting on downballot races. Whether that would lead to “better” outcomes, or would be a desirable end in and of itself, is not clear to me. PDiddie and Greg have more.

Straight ticket voting and the city propositions

As you know, the Chron recently wrote an editorial decrying the rise in straight ticket voting. Among other things, they said:

In two highly publicized Houston propositions on the ballot last Tuesday, nearly 56,000 voters did not register a choice on the Proposition 1 drainage fee issue and nearly 46,000 bypassed Proposition 3 on red-light cameras. Prop 1 narrowly passed and Prop 3 narrowly lost. It’s likely most of those so-called under votes were straight-ticket voters who never ventured down the lengthy ballot.

I still don’t have the data to answer the question about how many straight ticket voters did not cast a ballot in the city proposition elections, but I do have precinct data now, and can try to offer some illumination here.

The first thing to determine is in which precincts there are city of Houston votes, so the other precincts can be removed. This is an inexact science, because city boundaries do not conform to precinct boundaries. In other words, a given precinct may contain Houston voters and non-Houston voters in it. What I did, very simply, was eliminate precincts that had a large disparity between the number of votes cast and the number of votes plus undervotes for the propositions. This throws out some genuinely Houston votes, and includes some non-Houston votes, but it’s the best I can do, and it gets pretty close to the actual picture.

My method estimates that 380,830 votes were cast by Houston voters, which is a bit less than 48% of the Harris County total. The county clerk puts that number at 388,611, so I’m not too far off. I also calculate that 66.7% Houston voters cast a straight ticket vote, which is nearly identical to the 66.9% rate of straight ticket voting in the county overall. So far so good.

The undervote rate for each of the three propositions, as stated by the County Clerk, is as follows:

Prop 1 total votes = 332,757
Prop 1 undervotes = 55,838
Undervote rate = 14.37%

Prop 2 total votes = 315,076
Prop 2 undervotes = 73,522
Undervote rate = 18.92%

Prop 3 total votes = 342,819
Prop 3 undervotes = 45,779
Undervote rate = 11.78%

As discussed before, the undervote rate in the judicial elections was about 5.5%, so clearly there was a higher rate of undervoting on the city propositions. That leads to two questions. Question 1 is simply, was it likely to make a difference?

I’m going to throw out Prop 2 for the rest of this discussion, for two reasons. One, there was no campaign for or against Prop 2, and as such you should expect it to have made little impression on most voters. Two, the number of undervotes is less than the difference between the Against and For totals, meaning that if all of these undervotes were changed to For votes, it still would have failed.

For Prop 1, the For vote exceeded the Against vote by a margin of 6,123. To make up a 6,123 vote difference from 55,838 ballots, you need 30,979 of them to vote Against, which is 55.48%. I suppose that’s doable, but given the closeness of the overall vote, that seems like a bit of a stretch.

For Prop 3, it’s even more stark. Prop 3 was defeated by a 19,345 vote margin. To make that up from only 45,779 ballots, you’d need to win 71.13% of them, or 32,563 votes. I don’t think so. Maybe Prop 1 opponents have a case that straight ticket voters cost them a shot at a win, but red light camera proponents have no such argument. It’s just not plausible.

There’s another way of looking at this, which leads to Question 2: How do these undervote rates compare to undervote rates in city-only elections? There’s no such thing as a straight ticket vote in odd-number-year elections, after all. Let’s take a look at the 2009 election and see what it tells us.

First, for the eleven Constitutional amendments on the ballot, the undervote rate ranged from 10.80% (Prop 2) to 16.84% (Prop 6). That range comfortably includes the undervote rates in the city proposition elections for this year. Those amendments were voted on by the whole county, however, so let’s look at city-only races. Here are the undervote rates for all of the non-Mayoral elections in 2009:

City Controller = 15.39%

At Large #1 = 28.48%
At Large #2 = 30.66%
At Large #4 = 28.56%
At Large #5 = 25.89%

District A = 18.24%
District B = 14.94%
District C = 13.30%
District D = 15.05%
District E = 14.98%
District F = 8.64%
District G = 22.51%

I only included the contested races. With the exception of District F, every race here had an undervote rate that was higher than it was for Prop 3, and with the exception of Districts C and F, every race here had an undervote rate higher than it was for Prop 1. You can say whatever you want about this, but straight ticket voting had nothing to do with it. As such, I consider the Chron’s hand-wringing to be unfounded. Like or dislike straight ticket voting as you wish, I say it had no effect on the city propositions.

UPDATE: Fixed the math on the Prop 3 undervote calculation. Thanks to Mark C for the correction.

On straight ticket voting

After Democrats made big gains in 2008 in Harris County thanks in part to straight ticket voting, I defended the practice from the Republican concern trolls that came out to wring their hands about it now that they were no longer its primary beneficiary. I’m not going to change my mind after this election just because things went the other way. To my mind, there are far bigger issues that need to be dealt with first, in particular the legalization of unlimited anonymous corporate campaign money that the Supreme Court foisted on us this year. But at the end of the day, if people want to push one button and be done, I don’t think there’s anything wrong with that.

Be that as it may, it’s time once again to deal with the usual tongue clucking that seems to follow every election these days. First, a different issue that got the concern trolls riled up two years ago, partisan judicial elections.

During our recent screening of Harris County judicial candidates, the one consistent message from both incumbents and challengers was their distaste at having to run for office with a party affiliation.

The current method of electing judges also forces candidates to raise money from lawyers who will practice in their courts, a system that at minimum creates the appearance of favoritism in court deliberations.

In the last two elections we’ve lost good GOP and Democratic judges because of the boom-and-bust partisan cycles. It’s time to revive discussion of a merit appointment system linked to a periodic retention election to give the electorate the opportunity to replace poorly performing jurists.

Here’s the reality.

Iowa’s rejection of three state supreme court justices who ruled in favor of same-sex marriage underscored the growing electoral vulnerability of state judges as more and more are targeted by special interest groups, legal scholars and jurists said Thursday.

“It just illustrated something that has been troubling many of us for many, many years,” California Chief Justice Ronald M. George said. “The election of judges is not necessarily the best way to select them.”

The three Iowa high court justices were ousted in the kind of retention election California uses for appeals court judges: They face no opposing candidates and list no party affiliation, and voters can select “yes” or “no.” Legal scholars have generally said that system is among the most effective ways of avoiding a politicized judiciary.

But a report by the Brennan Center for Justice this year found a “transformation” in state judicial elections during the last decade throughout the country. Big money and a campaign emphasis on how a judge votes on the bench has become “the new normal,” the report said.

“For more than a decade, partisans and special interests of all stripes have been growing more organized in their efforts to use elections to tilt the scales of justice their way,” said the report, which examined 10 years of judicial elections. “Many Americans have come to fear that justice is for sale.”

I’ve said it before and I’ll say it again: You cannot remove the politics from judicial selections, no matter how you do it. Merely removing the partisan labels from judicial candidates will not magically make partisan interest groups and their money disappear. If you want to blunt the influence of those outside groups, the best bet is to reform the way judicial campaigns are financed. In this post-Citizens United world, that will only get you so far, but it’s a start. If the problem is the money, then deal with the money. I do not understand why this concept is so hard to grasp.

The second electoral reform the Legislature should consider is changing the current formula that encourages straight-ticket voting. Nearly 67 percent of Harris County voters voted straight ticket in the recently concluded election. Texas is among only 16 states permitting straight-party voting, and five others abolished it during the last two decades.

Critics contend the system encourages partisanship at the expense of quality government service. It can also undercut nonpartisan races and propositions on the same ballot. In two highly publicized Houston propositions on the ballot last Tuesday, nearly 56,000 voters did not register a choice on the Proposition 1 drainage fee issue and nearly 46,000 bypassed Proposition 3 on red-light cameras. Prop 1 narrowly passed and Prop 3 narrowly lost. It’s likely most of those so-called under votes were straight-ticket voters who never ventured down the lengthy ballot.

As Chronicle Outlook contributor Bill King noted before the election, straight-party voting in Texas was created by Democrats and maintained by Republicans to protect the majority party. “It will go away when the party in power in Austin calculates it is to its political advantage to do so,” noted King. “That might just be the case in 2011.”

Bill, if you’re reading this, I’ll bet you $10 right now that doesn’t happen. Hell, I’ll be shocked if such a bill even makes it to a committee vote. If there was a time for this, it was in the 2009 session, when Republicans were in close control but had just suffered major losses in the big counties. With their overwhelming win last Tuesday and hugely inflated legislative margin – in fairness, King wrote the column cited before the election – they have no reason to think in these terms. Even if they did, the budget and redistricting and all of their wingnut wish list items will take precedence.

As far as the assertion regarding the city propositions is concerned, it seems to me that is something that ought to have an objective answer. Surely we should be able to tell from the returns how many people who voted a straight ticket did and did not also cast a ballot on the propositions. I’ve put in an email to the County Clerk to inquire about that and will report back when I get an answer. Regardless, it also seems to me that there’s no reason why an electronic voting system could not be programmed to accommodate this. If a straight-ticket vote is cast, the interface could then prompt the voter if it detects that there are elections on the ballot that aren’t covered by that vote – special elections, non-partisan races, ballot propositions, etc. Maybe the Chron could ask our new County Clerk to make this a requirement for the next generation of eSlate machines. The point is, there’s no reason why this needs to be an issue. We have the technology to not make it one.

Straight ticket voting trends

One last look at partisan voting trends this decade, with a peek at how straight ticket voting has changed over time. This one is a bit trickier to determine, since it’s not tracked by the Secretary of State. You have to go to each individual County Clerk website to figure it out. Some counties I looked at – Cameron, Comal, Galveston, and Hays – either didn’t have election result archives, or they had incomplete information. Here’s what I found for the counties that did have this data:

(more…)

Kesha Rogers

No, I can’t explain the result in CD22, either. Stuff just happens sometimes, especially in races where not much attention is being paid. The good news, if you can call it that, is that nobody was going to make a race out of this for November anyway, so it’s not like this represents a blown opportunity. Obviously, the county party chairs want you to vote a straight ticket, which is why Gerry Birnberg was trying so hard to make lemonade in that story. But it’s not at all hard to vote a straight ticket and then de-select your vote in one race; I did that in 2008, and you can too in 2010 if you’re unfortunate enough to live in CD22. Which brings me to the one bit in this story that annoyed me:

One Democratic blogger already has posted instructions on how to de-select Rogers from a straight party ticket vote.

Is there any particular reason that sentence couldn’t have read “Hal Heitman, a Democratic blogger who lives in CD22, has already posted instructions on his blog Half Empty on how to de-select Rogers from a straight party ticket vote”? I had a pretty good idea of where to go to find that particular posting, but for those who might not be as aware of the local blog scene, wouldn’t it have been nice to be a wee bit more specific? I really don’t get the reluctance to do so. Be that as it may, Hal’s instructions are on target, and it’ll only take you a few extra seconds to perform that step. Up to you if you want to do it, but there you have it. Juanita has more.

How Dave Wilson snuck into the race against Eversole

Right wing hatemonger Dave Wilson’s last minute filing in the Democratic Party against County Commissioner Jerry Eversole caused a lot of confusion yesterday as people tried to figure out just who it was that filed. Wilson himself didn’t show his face at HCDP headquarters, as people there would have recognized him. Instead, he sent his campaign treasurer there, and once he felt certain that no Republican was going to file against Eversole, he had his treasurer file the papers. All that is discussed in this Chron story about his filing.

Wilson — who once hosted a fund-raiser for Republican incumbent Jerry Eversole — believes Eversole will resign his seat as a result of a corruption investigation by the FBI, and he wants voters, not the county Republican Party or county judge, to pick his successor.

County election records indicate that Wilson, 63, has voted in eight GOP primary and runoff elections since 1995, but never in a Democratic election.

Harris County Democratic Party Gerry Birnberg accused Wilson and the Republican Party of fraud. Not only is Wilson not a Democrat, Birnberg said, but the candidate sent a representative who signed in as Wilson and allowed himself to be introduced as Wilson to a roomful of applauding Democrats.

Birnberg said he did not realize when Wilson’s representative filed his candidacy papers that it was the same Wilson who sent out 35,000 fliers in November opposing Annise Parker for mayor, in part, because of her sexual orientation.

“We would have recruited a placeholder so we could keep this charlatan out of the race,” Birnberg said.

He said local Republicans should be ashamed to “stoop to such fraudulent chicanery.”

Harris County Republican Party Chairman Jared Woodfill said, “We had absolutely nothing to do with it.”

I actually believe Woodfill on this. Other than a few giggles, the HCRP doesn’t really gain anything by Wilson’s candidacy. Of course, as Coby points out, if the Republican establishment had ever bothered to lean on Eversole to ride off into the sunset and let someone a little less corrupt than him run instead, this never would have happened. But once Eversole decided he was in the clear with the FBI, potential contenders for his seat melted away. Instead, what we have is a “choice” between two unacceptable candidates.

I feel terrible for the people who live in Eversole’s precinct and are thus faced with this stinker on their ballot. Unless a Libertarian or other third-party alternative gets in (memo to the Libs and the Greens: this is a Golden Opportunity for you), the only sensible thing to do is to skip this race. You can still vote a straight party ticket if you’d like. Just be sure to de-select the candidate of your party in this race after you hit the “straight party” button. I did this in 2008 for a Democratic candidate I didn’t want to support, and it worked exactly as I expected it to. Vote straight party, review your choices, uncheck the candidate from this race (if a third party candidate has entered, you can then choose that person if you want to), and cast your vote. It’s easy, and it’s the right thing to do, regardless of which party you otherwise support.

Federal court rules for TDP in voting machine case

I’m a little surprised by this.

A three-judge panel has ruled that Dallas County election officials violated federal law when they did not inform the Department of Justice about changes in the way straight-party votes are counted on electronic voting machines.

The judges determined that the county did not get proper approval from the Department of Justice to use the county’s current machines. They granted an injunction requested by the Texas Democratic Party to halt use of the machines in Dallas until they get Justice Department clearance.

The ruling stems from a federal lawsuit filed by the party last year after a close recount favored the Republican candidate in a crucial statehouse race. Democrat Bob Romano lost the District 105 race in Dallas to incumbent Linda Harper-Brown by 19 votes.

The Texas Democratic Party sued Dallas County, claiming that election officials here failed to notify Justice Department officials about “emphasis” votes that don’t get counted when people vote straight-party on electronic machines.

I’m surprised because I’d forgotten that there was still a suit pending. The last word I had recall on this was of a TDP-filed lawsuit that had been tossed, with no further appeals pending. But that suit dealt only with the HD105 recount; there was a second suit filed that was about the larger issue of the machines in general. I still say that the matter isn’t that confusing, at least based on my own eSlate experience last year, but it’s certainly plausible to me that a change in the interface could have been made in Dallas without all the proper legal hoops being jumped through. And there is room to make it more clear to a voter what is happening when they act this way, to really avoid any confusion. I’m not sure how this might affect Harris County next year, but it’s something to watch out for. A statement from the TDP regarding the ruling is beneath the fold.

(more…)

One more from Annie’s List

Annie’s List announced their first endorsed candidate for 2010 over the weekend. Now they have a second, and she’s in Houston. From their email:

Annie’s List is proud to announce our endorsement of Kendra Yarbrough Camarena for State House District 138 in Houston. Kendra is a life-long resident of the district that includes Spring Branch, Garden Oaks and the Oak Forest areas of Northwest Houston outside of Loop 610.

She is also a mother of two beautiful children, a highly regarded middle school teacher, a volunteer little league coach for her son’s team (Go Cardinals!), a life member of the Houston Livestock Show & Rodeo, a former member of the SDEC and certainly no stranger to the rough and tumble world of politics. Her father, Ken Yarbrough, held this seat in the 90’s, and while earning her degree at the University of Texas, she worked in the Capitol for an East Texas Democrat.

In recent elections, Democratic candidates have won increased support in HD-138 and Sheriff Adrian Garcia carried the district last year with 52.8% of the vote. And, hometown Democrats like Senator John Whitmire and J.P. David Patronella typically run well ahead of the Democratic ticket in the middle class swing precincts. It is also worth mentioning that Democrats actually perform better in non-presidential elections here where Republican straight ticket voting advantage is nullified.

Additionally, tremendous demographic changes are occurring in this portion of Houston (now a combined minority Voting Age Population over 50%), and mobile young professionals and GLBT families (getting priced out of the Heights and Montrose) are revitalizing older neighborhoods just outside Loop 610. All of that combined with the fact that the Republican incumbent, Dwayne Bohac, has never been forced to defend his extremist record against a well funded, hometown Democratic challenger, and it is pretty clear this race can be won.

Bohac has had challengers in the last two elections, Mark McDavid in 2006 and Ginny McDavid last year, but neither had any real funding. He also ran better than the average Republican in his district in each of those years, and he’s got strong ties to the district as well. And as for the assertion about straight ticket voting, I took a look at the 2008 and 2006 numbers, and this is what I got:

Year Straight R Straight D R Pct Bohac McDavid Bohac % ============================================================= 2006 5,412 3,975 57.7 7,087 4,308 62.2 2008 11,699 9,521 55.1 9,929 5,497 64.4

Those are the straight-ticket vote numbers in HD138, and the Bohac/McDavid numbers with the straight-ticket tallies subtracted. Dems actually closed the straight ticket gap somewhat last year, which I think is a tribute to the overall HCDP county coordinated effort. But by the same token, Bohac won a higher percentage of the ticket splitters in 2008 than he did in 2006. Convincing those voters to switch will need to be as big a part of this effort as getting out the base Democratic vote.

There’s an ActBlue page for Camarena, and Annie’s List will be matching contributions through June 30. They’re definitely out of the gate early, so we’ll see how successful the effort is to get a jump on fundraising.