The all-Republican Texas Supreme Court ruled Wednesday that Harris County may not send mail-in ballot applications to millions of potential voters – a unanimous opinion that directly reversed the rulings of all the lower court judges in the case, who happen to be Democrats.
Political experts say the ruling by the members of the state’s highest court could mean thousands and thousands of fewer votes cast in a Democratic stronghold, which could mean fewer votes for the four challengers to incumbents on that court. But the impact of judicial races goes well beyond such high-profile decisions. And party affiliation should not be your only guide.
As early voting begins this Tuesday in Texas, most citizens will enter their polling centers or mail their ballots with the presidential race dominating the agenda, and perhaps a plan for U.S. Congress and state legislative races. Cable news, talk radio and social media are saturated with news and opinions on these political contests.
On that same ballot – though with far less prominence and considerably less public attention – is another set of races that are mostly ignored or forgotten. Yet they are many times more likely to affect the day-to-day lives of Texans in a more personal, meaningful way than the decision of who becomes president or who goes to Congress.
Understanding the ballot
The Harris County ballot features 35 races for state trial and appellate court judgeships. Four of the nine Texas Supreme Court justices who voted against Harris County on Wednesday are among those on the ballot. The ballot for Dallas County, another of the state’s busiest counties for courtroom activity, features 17 such races this year.
These judges are the people who decide the amount of child support a parent pays, whether the government can take part of your property to build a new road, who gets what when a parent suddenly dies without a will, how a business will be divided when partners feud and whether the person who burglarized your home or your child arrested for marijuana possession goes to jail or gets probation.
For example, these elected judges decided that Gov. Greg Abbott’s COVID-19-related restrictions on businesses were legal and that landlords could not evict delinquent tenants because of the pandemic.
Despite the extraordinary importance of these positions and the impact they have on people’s everyday lives, most voters have no idea who these judicial candidates are, how they differ on the issues, who their past clients have been or how they have ruled in past cases.
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.
Encumbered with so many judicial races, Houston’s lengthy ballot is Exhibit A for the fatigue and uncertainty voters will face when selecting candidates.
The Harris County ballot features four races for the Texas Supreme Court and three positions on the Texas Court of Criminal Appeals on the second and third columns of its first page. Texas has a bifurcated appellate system, which means the Texas Supreme Court hears only civil and noncriminal constitutional matters.
Page 2 of the Harris County ballot features four judgeships on the two Houston area intermediary appellate courts – the First and Fourteenth Courts. More than 99% of all disputes are finalized at these regional appellate courts or the lower trial courts and are not appealed to the Texas Supreme Court.
Finally, 24 races are listed on pages two and three of the ballot for the state district courts and three for the county courts at law. These are the trial courts, which are the workhorses of the American justice system. They decide whether cases move forward to trial or are dismissed for lack of evidence. Just one ruling by a judge, however insignificant that ruling may seem in the moment, could alter the course of a case — all the way up the appellate courts.
In 2018, about two-thirds of voters in Texas chose their judicial candidate by straight party voting. The Texas Legislature in 2019, however, ended straight ticket voting for Democratic or Republican candidates.
The question is, will voters take the time to go down the ballot to even make a vote for one of the judicial candidates. Even if they do, will voters know or understand the differences those candidates bring?
“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.”
Other than the elimination of straight party voting, lawyers and judges point out multiple other factors facing the electorate that could have an impact. There is the recent 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.
There’s the pandemic and the myriad legal issues it presents, as well as racial tensions, police shootings and rioting.
“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.”
When political party does and doesn’t matter
True, U.S. Chief Justice John Roberts said there are no “Obama” or “Bush” judges, only dedicated judges, but the Texas Constitution mandates that all judges here be elected, making Texas one of only seven states where these positions are political and partisan.
Legal experts say there are clear and definitive differences between the Democratic and Republican judicial candidates that impact cases large and small. What my personal reporting experience and stats both show is that Republican judges in Texas love confidential binding mandatory arbitration in business and commercial disputes and that they are loath to second-guess decisions made by arbitrators – even when those verdicts seem contrary to the facts or Texas law.
Most Democratic jurists, by contrast, believe arbitration is an elitist process that favors large companies. They believe in giving great deference to decisions made by juries.
And there are stereotypes that judges wave off but tend to be supported by the facts. For example, insurance companies overwhelmingly support Republican judicial candidates while trial lawyers favor Democratic jurists.
Justice Paul Green, who retired from the Texas Supreme Court at the end of August, said there should be no real substantive differences between judicial candidates from different parties “because they take an oath to follow the law to the best of their ability.
“In my experience, it seems like the Republicans’ conservative approach to the law is that come hell or high water, we are going to try and interpret the law as is,” said Green, who is a Republican. “I have found that judges or candidates with a more liberal judicial philosophy would apply a more subjective approach to deciding cases — in other words, rationalizing a preferred outcome — rather than trying to adhere to the law as written.”
Democratic judges scoff at such claims as overgeneralizations. They argue that Republican judges in Texas have neutered the constitutional right to trial by jury by declaring that dozens of issues once decided by citizen juries as matters of fact are now decided by judges.
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 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.
Another stereotypical difference often cited between Republican and Democrat appellate judges is which party they favor in civil legal disputes. Democrats often have the reputation of being pro-plaintiff, while Republicans often are known to favor defendants.
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.”
The candidates & the issues
Because the elections for the Supreme Court of Texas and Texas Court of Criminal Appeals are statewide, most lawyers assume the Republican incumbents will win. In 2016, three state Supreme Court justices won their elections by huge margins – an average of 55% to 40%.
In 2018, however, the voting difference was cut in half. The three Republicans defeated their Democratic opponents 53% to 46%.
The last time that a Democrat won a Texas Supreme Court election was 1993.
Democrats believe this term offers the best chance they’ve had in 27 years. Even if the challengers stunned the legal profession and won all four justice seats, the Republicans would still hold a majority of seats on the state’s highest court.
The four Democratic challengers in the Texas Supreme Court races are all women. Only one of them is white, and she is Travis County District Judge Amy Clark Meachum, who is the first woman to run for the court’s chief justice position. She is opposed by Chief Justice Nathan Hecht, the longest serving justice in Texas history.
Dallas County District Judge Staci Williams vies to defeat incumbent Jeff Boyd to become the first African American woman elected to the court. Gisela Triana is of Cuban descent and seeks to defeat incumbent Brett Busby. Houston lawyer Kathy Cheng, who is running against incumbent Jane Bland, hopes to be the first Asian American woman to be elected to the court.
There’s a similar demographic makeup among the Democratic challengers vying for the three open seats in the Criminal Court of Appeals, thought one is a white male – Brandon Birmingham, who hopes to defeat Republican incumbent David Newell. Dallas criminal judge Tina Yoo Clinton is the first Asian American woman to run for a spot on the court, hoping to defeat Republican incumbent Kevin Patrick Yeary. Dallas criminal defense lawyer Elizabeth Frizell, the court’s first female African American candidate, seeks to defeat incumbent Bert Richardson.
According to a new poll released Tuesday by the Houston Bar Association, lawyers favored most of the incumbent candidates in the Texas Supreme Court and Houston’s First and Fourteenth Courts of Appeals. However, all three challenger candidates were favored in the Court of Criminal Appeals races. While not entirely identical, those results mostly rang true in a poll of the appellate races released by the State Bar of Texas at the beginning of the year.
Democrats have dominated the trial courts – civil and criminal – in Houston, San Antonio, Austin and Dallas for more than a decade.
In the criminal courts, bond reform has been a hot issue. While it’s one more directed toward the trial courts, legal experts say the appellate court races could be affected.
“Bond reform may or may not be working, I don’t have an opinion on the issue that I will publicly share,” said Levi Benton, a former civil trial judge who ran for a spot in Houston’s First Court of Appeals in the Republican primary but lost to Justice Terry Adams.
“What gets sensationalized is when a person who is released for a modest bond commits another crime, especially when the second offense is a heinous crime, that gets outsized media attention,” Benton said. “The bond decisions are trial court decisions, but if you’re upset at judges generally about the bond decisions, then the incumbents on the court of appeals may be adversely affected in the voting process.”
The fate of party leadership in the appellate courts may be a bit more up in the air.
The state’s intermediate appellate courts for decades have been dominated by Republicans. That changed in 2018, when four appellate courts — Austin’s Third Court of Appeals, Dallas’ Fifth Court of Appeals and Houston’s First and Fourteenth Court of Appeals — flipped to Democratic majorities.
Many are convinced that the seats in those courts will continue to flip from red to blue in November — not only because the politics would be reflective of the urban areas the courts serve but because of who is at the top of the ballot in a campaign season that’s overall been unkind to Republicans.
Even so, many Democrats won the 2018 appellate races by extremely slim margins — often by 51% to 49%, indicating that the races were entirely dependent on voter turnout, which is a more heavily-discussed albeit unpredictable issue in a presidential election year that coincides with a worldwide pandemic.
This means that a few votes — your vote — could shift the balance to whichever party you fancy.
How to dig deeper
So, I hope I’ve convinced you that your vote will matter in this year’s judicial races. Now let’s talk about how to cast it with confidence.
First, make a promise to yourself before you enter the polling booth. Study who the judicial candidates are, the backgrounds they come from and their positions on issues important to you. Study what their record looks like. Study how the legal community views their fairness and impartiality. And choose those candidates based on that, not just their party membership — an association they’re forced to make to get on the ballot.
While it’s true that there may not be as much media coverage of these judicial candidates as the higher-profile politicians, there are still plenty of resources out there that at least give you an idea of who these candidates are.
Study the HBA’s new judicial preference poll or your local bar association’s judicial evaluation poll, which grades judges on an array of areas, such as fairness, following the law and ruling in a timely manner. If any of your friends or neighbors are lawyers, ask them who they are supporting and why. Members of the legal community often cast ballots based on direct experiences they’ve had in the judges’ courts.
But take these assessments as just one piece of information. They should be read with caution — lawyers are as guilty of being clubby as any other group of professionals. It’s possible for a good judge to anger lawyers or for implicit bias to play a role.
Read newspaper endorsements. Run a search on the court of appeals’ website to see if any trial judges on the ballot have ever been ordered to rule on something they’re legally required to determine but haven’t yet. Look to see if a higher court has issued rulings reprimanding lower courts. Run a search on the State Bar of Texas’ website to see if the judge has ever been disciplined or if they’ve ever put their license to practice law in jeopardy. Hell, run a simple Google search. You never know what you may find.
But for God’s sake, please don’t hit the polls without running any due diligence. As journalists say, there’s plenty you can find out if you just do a little digging. That’s something you owe to yourself, your community and our democracy.
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.