The power of incumbency, normally a potent advantage at the ballot box, may prove to be of diminished relevance in this year’s three races for seats on the Fifth Court of Appeals in Dallas.
All three contests feature Republican incumbents facing off against sitting Dallas County District Court judges.
But in each case, “incumbent” carries an asterisk:
– In Place 3, incumbent Republican David Evans is running against Democrat Bonnie Lee Goldstein, who currently sits as the judge in Dallas County’s 44th civil district court. Evans secured his incumbency not from voters but from Republican Gov. Greg Abbott, who appointed the longtime jurist to the Court of Appeals a year ago to succeed Justice Ada Brown, who was nominated by President Donald Trump and confirmed by the U.S. Senate for a federal judgeship in the Northern District of Texas – the first African American woman so appointed in the district’s 140-year history.
Evans – who made headlines last year when he donated a kidney to a friend and colleague, Carolyn Wright, a retired chief justice of the Fifth Court – previously served on the appellate court from 2012 until 2018. In that year, like other Republicans on the court, he was swept under by a roaring, unprecedented blue tide on Election Day, one that transformed the Fifth Court bench from unanimously Republican to overwhelmingly Democratic. Despite his incumbency then, Evans lost to Robbie Partida-Kipness 52% to 48%.
– In Place 6, incumbent Republican John Browning faces Democrat Craig Smith, who currently serves as judge on Dallas County’s 192nd civil district. Browning’s incumbency was a product of tragedy: He was appointed to the Fifth Court in August to take the place of Justice David Bridges, a respected 24-year veteran of the court who was killed July 25 when a drunken driver going the wrong way on Interstate 30 plowed into the justice’s car.
Browning, a well-known Rockwall attorney, lost a bid in 2018 to win a seat on the Fifth Court. He was defeated by Democrat Cory Carlyle roughly 53% to 47%.
– In Place 8, incumbent Republican Bill Whitehill is running against Democrat Dennise Garcia, the judge in Dallas County’s 303rd family district court. There’s a there-but-for-the-grace-of-God aspect to Whitehill’s incumbency: He had the good fortune not to be up for reelection in 2018 when Dallas-area Democrats, pulled along by their party’s national surge of midterm triumphs, won eight of eight Fifth Court seats on ballot. Before that 2018 sweep, no Democrat since 1992 had been elected to a spot on the 14-member Dallas appellate bench, which had long been viewed as one of the most conservative, pro-business appellate courts in Texas.
The Fifth Court of Appeals, one of 14 such courts in Texas, hears civil and criminal appeals (except those in capital murder cases, which are appealed directly to the Texas Court of Criminal Appeals, the state’s highest criminal court) from six North Texas counties: Collin, Dallas, Hunt, Grayson, Kaufman and Rockwall.
Although Texas Supreme Court races generally draw far more attention statewide than appellate court (or any other judicial) elections, the courts of appeals is where the vast majority of cases reach their final resolution, noted David Coale, a prominent appellate specialist with Dallas firm Lynn Pinker Hurst & Schwegmann.
“The intermediate courts of appeals, as a practical matter, are the ‘last word’ for 90-plus percent of the cases in the civil and criminal justice systems,” Coale said. “Our two supreme courts can only take so many cases to review, and as a result have to focus on a handful of legal issues that have broad statewide importance. Most of the work by an intermediate court of appeals is not flashy, but it’s the basic, bricks-and-mortar stuff of the legal system. You just can’t have a meaningful rule of law without them.”
Moreover, the Supreme Court gets to pick and choose which appeals it will hear. The courts of appeals has no such discretion and, thus, is a guaranteed forum for any party who feels he or she was wronged at the trial level.
In many ways, the Fifth Court is a tale of two jurisdictions. Dallas County leans strongly Democratic: It’s gone for the Democratic presidential candidate in every election since 2008. The other five counties are just as strongly, if not more strongly, Republican. Not one of them has voted Democratic in those same presidential elections.
Until 2016, the dominance of the GOP in the outlying counties was sufficient to overcome the great population advantage of pro-Democrat Dallas County. Taken together, the Republican presidential votes in the six-county jurisdiction outnumbered the Democratic votes.
That changed with the 2016 contest between Donald Trump and Hillary Clinton. Clinton carried Dallas County by almost 200,000 votes, and that margin was more than enough to overcome the Republican advantage in the other five counties of the Fifth Court of Appeals. Overall, the court’s jurisdiction swung to the Democrats 52% to 48%. That advantage was more than reaffirmed in the 2018 midterm election.
One wild card this year, Coale said, is the abolition of straight-ticket voting in Texas. Pushed through the 2016 Legislature by the Republican majority over the strenuous objections of Democrats, the ban on straight-ticket voting takes effect for the first time in this year’s general election. In Texas’s urban counties, Democrats historically have been much more likely than Republicans to vote a straight ticket – meaning every Democrat in every down-ballot race enjoyed the same benefit of a ‘Yes’ vote as the party’s far more prominent standard-bearers at the top of the ticket.
The end of straight-ticket or one-punch voting “likely means fewer voters will go all the way down the ballot to these [Court of Appeals] races,” Coale said. While “we don’t really know which voters will be motivated to do so,” he added, “lawyers will probably have outsized influence in judicial races, since more of them are likely to have the motivation to vote in these races. And if one party has significantly more enthusiastic turnout than the other, that enthusiasm will have extra influence on these down-ballot races.”
Another unknown, he said, is what will almost surely be an unprecedented rise in early and absentee voting in Texas and the postelection challenges, promised by Trump, to tabulations of mail-in ballots nationwide.
“If one party has significantly more early voting than the other, there could be some prolonged uncertainty about these races just like there could be nationally about the presidential race,” Coale said.
In two of the three Fifth Court of Appeals races, the Democratic challengers appear to have significant fundraising advantages over the Republican incumbents, according to the latest campaign finance reports filed this week with the Texas Ethics Commission.
Goldstein reported raising $33,550 and spending $84,549 in the reporting period from July 1 through Sept. 24. She had $94,858 in campaign cash on hand at the end of that period. Evans, her Republican opponent, reported raising $4,900 and spending $1,424, leaving him with $25,892 on hand. Goldstein’s fundraising efforts may have benefited from her previous experience running for the Fifth Court of Appeals; she ran in for a spot in 2010 but lost to Republican incumbent Lana Myers, who won 58% of the vote.
Smith reported raising $39,713 and spending $10,713 in the same reporting period, leaving himself with $262,424 in contributions on hand. Browning, the eleventh-hour Republican appointee to replace the Justice Bridges, reported raising $14,382 and spending nearly all of it — $14,085 – leaving just $297 unspent in his campaign war chest.
Only Whitehill, the one elected Republican incumbent, had a demonstrable financing advantage over his opponent. The justice raised $20,785 and spent $117,525, leaving him with $64,794 on hand. Garcia, his Democratic challenger, raised $20,178 – roughly the same as her GOP adversary – but spent just $10,902 and had just $14,404 in cash on hand at the end of the reporting period.
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.