State and Local Judge Elections
The Step-Children of the Ballot
Raise your hand if you’re like me when it comes election time — you know who to vote for for President. Senate. Congress. Maybe even your state and local legislators, mayor, sheriff, etc.
Then you get to the part of the ballot for state and local judges.
Your brow furrows. You have sudden regrets because you overlooked these offices and didn’t do your research.
Or maybe you aimlessly fill in the bubbles or skip it altogether, because “meh.” Most of them don’t have opponents anyway. You can’t tell their political party, so you can’t vote the party line. You’ve never heard of them.
And you wouldn’t be alone.
BUT do you know how important those seats actually are? If anyone wanted to make them important, they’d be front page news, statewide, across the states.
STORYTIME - Wisconsin State Supreme Court Election 2020
Remember that crazy election in 2020, where Donald Trump tried to steal an election by screaming fraud but couldn’t produce a single piece of evidence to support it? Where he brought over 60 cases to state and federal courts in efforts to find judges who would support his frivolous legal arguments? (Spoiler alert: None would.)
One state subjected to this insanity, as we know, was Wisconsin.
Here’s a little-told story.
Before the presidential primary and the general election, Wisconsin held a nonpartisan primary and general election for a State Supreme Court seat that ended up a race between David Kelly, a staunch conservative justice who has, many times, ignored the law and decided cases from his partisan world view, and Jill Karofsky, a more liberal-leaning judge.
Jill won this tiny election despite paltry turnout levels. And thank the gods she did. With her on the state supreme court, the “political spectrum” balanced out, with a swing vote in 5th conservative judge, Brian Hagedorn.
Because of this early 2020 election, Democracy withstood the attacks from Donald Trump and the Republican party later in the year. If David Kelly remained on the bench, it is almost certain the state supreme court would have decided to overturn the will of Wisconsin voters to further the aims of a party hellbent on massacring our rights to elect our representatives.
Great Story. That’s Horrifying (I know, right?) What’s your point?
One of the main reasons I started Inflection Point is to address a critical missing element from media reporting on state and local elections; more specifically, how state court judges are elected or appointed.
There is frequent discussion surrounding the U.S. Supreme Court and its decisions and appointments, in the local and national media, more than statewide judicial appointments, elections, and decisions, but still a relatively small focus for such a critically important aspect of the American government.
A lot can be said for the dumpster fire which raged out of control/continues to rage over the last 5-10 years in American politics; more specifically during the Trump administration and since he left office. My personal anxiety levels remain off the charts because of how close we are to losing democracy. Despite this, and despite the sheer number of barely or unqualified federal judges with lifetime appointments Trump, McConnell, and the Republican party confirmed to the bench, my faith in the federal judiciary remains tattered but in tact. Much more tattered than in tact following the most recent Supreme Court term, but that’s a rant for another day.
Did you know . . .
Did you know that so far, in Biden’s term, the President and the democrats in the Senate have confirmed 74 Article III judges to the federal bench. As of June 2022, the Biden-Harris Administration has confirmed more judges than any of his six predecessors (through Ronald Regan).
This is massively important to counteract the mostly unqualified judges put on the bench during the Trump Administration.
The fact that this many federal judges have been seated in 2021/2022 and it is not bigger news is incomprehensible.
“. . . with the US Supreme Court undoing long-held rights and putting our fates in the hands of state legislatures that are skewed because of gerrymandered districts, state and local courts will play an even bigger role in our everyday lives when it comes to determining criminal liability of abortion providers, or whether one citizen can sue another for helping a woman get an abortion, or whatever federally protected right the Supreme Court sends back to the states to handle.”
STATE AND LOCAL ELECTIONS FOR JUDGES ARE CRITICALLY IMPORTANT
AND UNLIKE FEDERAL JUDICIAL APPOINTMENTS, YOU - THE VOTER - HAS A SAY
State and local judges are responsible for deciding cases and creating precedent that significantly affect your every day life - more than the federal courts or the Supreme Court sometimes. It is much better for news ratings to take the complicated decisions from the Supreme Court and distill them into bite-sized headlines that draw rage and retweets. However, the media often misses the nuances that make some decisions make sense under the law (sometimes. Recent events not included.)
But state and local judges are the ones who will decide on accountability of police officers who commit bad acts in the line of duty, or will create precedent when it comes to state and local environmental issues, or will review laws passed by state legislatures, or state constitutional amendments, and state courts hold the fate of our voting rights and ballot access in their hands.
And even MORE CRITICALLY, with the US Supreme Court undoing long-held rights and putting our fates in the hands of state legislatures that are skewed because of gerrymandered districts, state and local courts will now play an even bigger role in our everyday lives when it comes to determining criminal liability of abortion providers, or whether one citizen can sue another for helping a woman get an abortion, or whatever federally protected right the Supreme Court sends back to the states to handle. (Un)ironically, state courts are even determining whether and how some of our gerrymandered districts will be or won’t be gerrymandered.
State and local judges mostly run unopposed, and as I noted above, win at the hand of votes by a generally uninformed electorate. And I can hardly cast stones as to being uninformed about judges running on a given ballot. As a lawyer, admittedly, sometimes this is an afterthought for me, and I give myself a good, long talking to after leaving the voting booth.
We all need to do better talking about and supporting judicial elections. We need to demand our local media report on these elections. We need more made out of the fact these offices are reelected unopposed. We need to make sure to shed a light on judicial records for those who continue to get reelected without opposition. The bar associations across the country can do their part in recruiting and mentoring legal professionals to prepare to run. And we can be better voters by demanding these things of our officials running for office, our media, and supporting our community members in encouraging them to run for judge seats.
Or maybe the whole system needs to be reformed to find judges in a different way.
Did You Know . . .
A majority of judges do not have opponents in their re-election or election bids for their seat?
It is virtually impossible to find details about state or local judicial candidates if you want to educate yourself ahead of an election?
Turnout for non-presidential year elections are abysmal but there are often judges on the ballot?
State judges are responsible for areas that significantly affect your every day lives, often moreso than the federal courts or the Supreme Court?
I encourage you to watch this excellent piece of reporting by John Oliver on Last Week Tonight from 2015 that brilliantly covers this issue. And then please get to researching the judges on your ballot, or reaching out to your local media outlets to put some focus on who is running.