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.

Related Posts:

• It’s the vote spread that matters
• On straight tickets and undervotes
• A theory about third parties