Judicial races: Noble intent defies partisan reality of actual voter behavior

Published 9:50 am Wednesday, January 18, 2017

By Sid Salter

There is nobility in the idea that Mississippians would want to elect judges on a nonpartisan basis. The idea that justice has an either Republican or Democrat leaning should be disturbing. The idea is noble, mind you.

But since the 1994 judicial election reforms that gave us nonpartisan judicial elections, the idea of nonpartisan races is all well and good but the practice is that visible, identifiable partisanship in how we choose judges has never really left the field of political battle.

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Folks who tend to vote Republican have found a way to learn the identity of judicial candidates are favored by Republicans and the same has been true for Democrat voters seeking to back Democrat judicial candidates. With a bill to make judicial races openly and honestly partisan comes House Speaker Pro Tempore Greg Snowden. His argument makes sense.

State law dictating nonpartisan judicial elections have been obeyed only to the extent of the old “wink and nudge” as partisans on both side regularly ignored the law by identifying their choices and funding their campaigns.

Need evidence? In December, Mississippi Court of Appeals Judge Ceola James to blame Democratic U.S. Rep. Bennie Thompson for her loss in a re-election bid on Nov. 8.

James, the incumbent appellate judge, lost that bid by more than 20,000 votes to challenger Latrice Westbrook — who defeated James 57 percent to 43 percent, or 86,525 to 65,145 votes.

James claimed in a lawsuit she filed against Thompson and Westbrook that her challenger “willfully and unlawfully” formed an alliance with Thompson that led to Westbrook’s defeat of James in the election.

How was that alliance responsible for the defeat of James? The defeated judge accused Thompson in the lawsuit of circulating a sample or “false ballot” which contained Westbrook’s name only. James said the ballot constituted “an alignment sheet” for voters.

The law that James is accusing Westbrook and Thompson of violating is the one that requires “nonpartisan” judicial elections. Whether Democrat or Republican, when judicial candidates receive support from political figures who are themselves declared partisans the cat is pretty much out of the bag.

Republicans like GOP Gov. Phil Bryant have openly supported judicial candidates. Democratic public officials like Thompson have likewise done the same thing. Snowden’s bill simply sets aside the charade for a law that reflect actual political behavior.

Mississippi’s laws do not preclude partisans from expressing support for judicial candidates. The laws do preclude judicial candidates from labeling themselves as members of a particularly party, but the law says nothing about the partisan leanings of their supporters.

Since the state’s first constitution in 1817, Mississippians have been arguing over whether to appoint or elect judges. In 1832, a constitutional convention fight erupted between three groups — the “aristocrats” who favored the appointment of all judges, the “half hogs” who wanted to elect some judges and have others appointed, and the “whole hogs” who wanted all judges elected.

History shows that the “whole hogs” won in 1832, and Mississippi has been electing judges ever since. Of the state’s current 545 judges from the Supreme Court to the municipal courts, only municipal judges are appointed.  Snowden’s bill also follows a 2002 U.S. Supreme Court decision in the Republican Party of Minnesota v. White case.

The Minnesota ruling struck down restrictions on the ability of judicial candidates to answer policy-specific questions and to robustly campaign. Political parties interpreted the ruling as a license to support candidates so long as there was no direct connection. That ruling rendered the concept of “nonpartisan” judicial elections to be a political joke.

Mississippi’s Code of Judicial Conduct bars candidates from voicing opinions on issues likely to come before the court. The White case held such restrictions unconstitutional.

Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com.