Do your homework before voting to fill court benches
The all-Republican Supreme Court of Texas ruled this week 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 of the lower court judges, who happen to be Democrats.
Political experts say the ruling by the members of the state’s highest court could mean 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 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. But it’s the judicial races — from appellate to trial courts — that arguably matter the most in our everyday lives and that voters least understand. So ready yourself for a crash course.
Understanding the ballot
The Harris County ballot features 35 races for state trial and appellate court judgeships.
These 35 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 convicted for possession of marijuana 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.
Most voters have no idea who these judicial candidates are.
“It’s hard for a lawyer to be fully informed on all the judicial races, much less a layperson,” said Houston lawyer Macey Reasoner Stokes, who heads the appellate section at Baker Botts.
The Harris County ballot features the four races for the Texas Supreme Court, which only hears civil and non- criminal constitutional cases, and three positions on the Texas Court of Criminal Appeals on the second and third columns of its first page.
Page two of the Harris County ballot features four judgeships on the two Houston-area intermediary appellate courts — the First and Fourteenth Courts. More than 99 percent 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 go to trial or are dismissed.
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 that has made these positions 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 — something that my reporting for The Texas Lawbook over the past several years supports. What experience and stats alike show is that Republican judges in Texas love arbitration in business and commercial disputes, and 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 favors large companies. They believe in giving great deference to decisions made by juries.
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. More liberal judges, he said, are more subjective, “rationalizing a preferred outcome” and making the law fit, rather than letting the law dictate the outcome.
Democratic judges scoff at such over- generalizations. 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.
“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,” Haynes and Boone appellate partner Kent Rutter said. “I think that will remain true by and large if the Democrats prevail this fall as well.”
Closer races, more diversity
The last time that a Democrat won a Texas Supreme Court election was 1993, but the margins of Republican victory have narrowed. This year, Democrats believe they have the best chance of changing that in years.
The four Democratic challengers are all women. Only one of them is white. Of the three Democrats running for places on the Court of Criminal Appeals, one is a white male and two are women of color. The timing of these diverse women running for office comes during a period when diversity issues have been top of mind for Americans during daily interactions, at work, and now, while choosing their leaders in the White House and beyond.
Democrats have dominated the trial courts — civil and criminal
— in Houston, San Antonio, Austin and Dallas for more than a decade.
Many are convinced that the seats in the intermediate appellate courts in Austin, Dallas and Houston 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 doesn’t appear to be favoring Republicans.
Even so, many Democrats won the 2018 appellate races by extremely slim margins — often by 51 to 49 percent. A few votes — your vote — could tip the balance for whichever party you choose.
How to dig deeper
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 who their party is — an association they’re forced to make to get on the ballot.
While party affiliation seems to be at play for most voters when it comes to the judicial races, legal professionals cast their ballots based on direct experiences they’ve had in the judges’ courts. They also share their views on judges in evaluations maintained by the local and state bar associations.
You can check out the Houston Bar Association’s judicial preference poll for candidates at the local and state level.
You can also look at the Houston Bar Association’s annual judicial evaluation, which grades judges on an array of areas, such as fairness, following the law and ruling in a timely manner. If you don’t live in the Houston area, check the websites of your local bar associations. 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. If any of your friends or neighbors are lawyers, ask them about who they are supporting and why.
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 even been disciplined or if they’ve ever put their license to practice law in jeopardy. Hell, run a simple Google search.
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.