In a few weeks, voters across the U.S. will make their way to churches, schools, and recreation centers to cast ballots — if they did not choose a mail-in option — to elect their senators, representatives and president.
Lower profile but equally important will be the local races. Texans in the Houston area will have the opportunity to fill four judicial seats on First and Fourteenth Courts of Appeals, two of the state’s intermediate appellate courts. While the national and statewide races capture the most attention, who sits on courts will arguably affect the everyday lives of Texans more than who wins in Austin or Washington.
Editor’s Note: This is the first in a large series of articles The Texas Lawbook will publish about key judicial races in Texas in advance of the Nov. 3 election. Articles on individual races will follow in the coming weeks.
The men and women of the First and Fourteenth courts are called justices for a reason: They’re typically the first people to scrutinize whether justice was truly served in the trial courts of Harris County and surrounding areas. These justices provide a chance to fix trial court mistakes — whether it’s a multimillion-dollar jury verdict that was slapped on the wrong oil company or a wrongful eviction of a low-income tenant.
The four judicial races underway in Houston’s courts of appeals come in the midst of a monumental shift in power across party lines. While both courts for decades held a red hue, they’ve grown bluer in recent years.
The shift became evident after the 2016 presidential election, when Hillary Rodham Clinton beat Donald Trump in both the First and Fourteenth districts. As Democratic turnout in and around Harris County continued to increase, the balance of both courts tipped in 2018, when each Houston appellate court gained five Democratic justices, creating the first blue majorities in two decades.
If this year’s election follows suit with the 2018 midterms, seven out of the nine sitting justices in each Houston appellate court will be Democrats.
The First and Fourteenth courts share a jurisdiction and a headquarters — both occupy the historic 1910 courthouse in downtown Houston. They both review civil and non-death penalty criminal appeals originating from trial court rulings in Harris County and nine others: Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Waller and Washington counties.
Four contested judicial races are underway in the First and Fourteenth courts — two in each. The all-female group of Democratic challengers are from diverse racial backgrounds during an election cycle in which racial and gender equality have been top of mind. All but one race features Republican male incumbents.
The lone race with females on both sides pits Republican incumbent Tracy Christopher against Democratic challenger Jane Robinson, an appellate lawyer at Houston litigation boutique Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing. Both candidates are vying for the Fourteenth Court’s chief justice position, a spot that opened up when the court’s current leader, Kem Thompson Frost, decided not to seek re-election. The race gives Republicans an opportunity to maintain not one seat, but two: If Christopher wins as chief justice, her current spot on the court (Place 9) would be filled by an appointee Gov. Greg Abbott.
The second race in the Fourteenth Court pits incumbent Ken Wise against Tamika “Tami” Craft, who hopes to be the first African-American justice to be elected to that court. Wise has served as an appellate justice since late 2013 and before that spent a decade as a trial judge. Craft maintains a practice that over the years has ranged from criminal defense to plaintiffs’ civil rights work. She currently serves as an administrative judge for the Texas Education Agency and as an appellate attorney for the Texas Workforce Commission.
In the First Court, incumbent Russell Lloyd faces a challenge from Veronica Rivas-Molloy for the Place 3 seat he has held since 2015. Before becoming an appellate justice, Lloyd spent 10 years as a civil trial judge, where he presided over more than 300 jury trials. Rivas-Molloy is an attorney at Jones Walker, where she handles trial and appellate work involving complex commercial, energy and labor and employment disputes.
Place 5 on the First Court is a battle between incumbent Terry Adams and Amparo Guerra, a partner at Shackleford, Bowen, McKinley & Norton with a practice specializing in employment disputes and other business litigation. Adams has only been classified as an incumbent for about a month. After winning the Republican primary this spring, the longtime appellate practitioner was appointed to the seat by Abbott in August, succeeding the longtime Justice Laura Higley, who resigned last fall after being diagnosed with Alzheimer’s disease.
The factors and issues
In a year that has delivered more than its share of surprising twists and turns, legal experts are finding it hard to forecast outcomes for the Houston appellate races.
If recent trends held, insiders say, it would be a no-brainer that the Democrats would prevail; most Houstonians, like the residents of Texas’ other urban areas, tend to vote blue.
But this year’s election is anything but traditional. Not only is it taking place amid a pandemic; it’s the first election since Texas lawmakers did away with straight-ticket voting in 2017. And while a federal courtroom battle is currently underway over whether the straight-ticket option will be added back on ballots, a ruling Monday in the U.S. Court of Appeals for the Fifth Circuit paved the way for the ballots to stay as-is for early voting, which begins Oct. 13.
The general election also comes on the heels of the death of revered U.S. Supreme Court Justice Ruth Bader Ginsburg, which has catapulted women’s rights issues and presidential nominations for the nation’s high court into an already-stuffed basket of issues occupying the minds of voters.
“Nobody quite knows how these factors are going to mobilize voters,” said Connie Pfeiffer, an appellate partner at Yetter Coleman in Houston. “Whether they favor Republicans or Democrats is hard to say. There are all sorts of unprecedented variables that make for a really challenging political climate.”
One such variable could be voter fatigue. Without the option of straight-ticket voting, voters will have to make their way down a lengthy ballot — lengthier still in some areas because the pandemic delayed municipal elections originally scheduled for the spring. For Harris County residents, judicial races alone will account for more than two dozen races on the ballot.
“The judicial races may come down to voter stamina and perseverance to go all the way down the ballot,” said Levi Benton, a former trial judge who ran against Terry Adams in the Republican primary.
Many experts say ordinary voters tend to pay less attention to judicial races. That could tip the scales in favor of the party that is most successful at getting out the vote — all the way down the ballot.
“It’s hard for a lawyer to be fully informed on all the judicial races, much less a layperson, so there’s a risk that some people won’t make it down the ballot to all the races,” said Houston lawyer Macey Reasoner Stokes, who heads the appellate section at Baker Botts.
Others are convinced that the judicial races will turn on who prevails higher up on the ballot.
“There’s very little if anything a judge can do in regard to winning an election,” said Terry Jennings, a former First Court of Appeals justice who now works primarily as a mediator and arbitrator in Houston. “It’s really dependent on what happens at the top of the ticket.”
Though perhaps it’s inside baseball for most voters, members of the Houston legal community may consider how the First and Fourteenth courts have changed since Democrats took control two years ago.
According to recent study by Haynes and Boone, the state’s appellate courts that flipped to Democratic majorities in 2018 — Houston’s First and Fourteenth courts, Dallas’ Fifth and Austin’s Third — helped level the playing field between plaintiffs and defendants who challenge trial court outcomes.
During the Democratic majorities’ first nine months on the job, those four courts reversed on 17% of appeals brought by defendants and 18% of those brought by plaintiffs. In the last four months of 2018, when the courts were still all-Republican, defendants won reversals on appeal 39% of the time, compared with only 5% for plaintiffs.
Those snapshots may give the impression that Democratic justices are more plaintiff-friendly, but Houston Haynes and Boone appellate partner Kent Rutter draws a different conclusion.
“To me it suggests that it’s not a desire to tilt the balance one way or the other, but more of an inclination by the new Democrat justices to defer to a jury verdict regardless of what the jury decides,” Rutter said. “I think that will remain true by and large if the Democrats prevail this fall as well.”
Regardless of this election’s outcome, Rutter said that seats on both the First and Fourteenth courts will continue to be filled by qualified judges, and that politics will rarely be a factor in the courts’ rulings.
“The courts are not partisan battlegrounds; they are applying statutes that are given to them by legislation and precedent handed down by the Texas Supreme Court,” he said. “In the vast majority of cases, it makes no difference which political party the judge comes from.”
Publisher’s Note: This coverage of the 2020 judicial elections by The Texas Lawbook is being made available outside our paywall courtesy of Thompson Coburn and Carter Arnett.