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Friday, November 02, 2012

Ind. Courts - More on "ACLU of Indiana Challenges Marion County Judicial Election System"

Updating yesterday afternoon's entry, a front-page Indianapolis Star story this morning, reported by Michael Boren, mostly defends the current system:

You will see 20 candidates on the ballot for Marion County judges when you vote Tuesday, but it won’t matter who you vote for — all the candidates will win.

State law allows political parties, not voters, to determine who is selected as a Superior Court judge in Marion County before the general election occurs.

Now, that law is being challenged. * * *

The ACLU argues the law leaves most voters out of the election process.

To some legal experts and political party members, however, the law helps maintain bipartisanship and prevents voters from having to choose from 20 candidates they know little about.

The law, passed in 2006, gives Marion County a unique system for electing Superior Court judges, who hear the majority of the county’s criminal and civil cases.

During a primary election, according to the law, the Democratic and Republican parties nominate the same number of Superior Court judicial candidates (in this case, 10 each). These two groups add together to match the total number of judicial seats available in the general election (in this case, 20). In other words, because the number of candidates does not exceed the number of available seats, a candidate who wins in May can't lose in November, unless a third-party candidate runs and wins.

This essentially makes voting on Election Day irrelevant, unlike during the primary when individual votes help determine a winner.

The law is the only one of its kind in Indiana, and possibly the nation, said Joel Schumm, a professor at Indiana University’s Robert H. McKinney School of Law who teaches seminars each spring on how judges are appointed. The ACLU lawsuit raises serious questions, he said.

“Definitely, the lawsuit makes a valid point,” he said. “And it’s certainly a flawed process.”

But, Schumm added, the process in Marion County also works for several reasons. Very few voters know the judges in a county as big as Marion, as opposed to a small town where residents may know judges personally or have appeared before them. This, Schumm said, makes residents in a general election more likely to vote based on political party affiliations.

If the Democratic Party is doing well nationally, voters often are more likely to vote for Democratic judges. What it means, Schumm said, is good judges sometimes get kicked out of office, not for their performance but because voters don’t know anything about the judge and are just voting based on political party affiliations.

That’s why changing the current system could create problems, Schumm said.

“As flawed as this process may be,” he said, “there’s a possibility the cure may be worse than the disease.”

Local political party officials say the law prevents confusion among voters.

“It’s difficult for the general public to go through there and to differentiate if you have 20 candidates,” said Ed Treacy, chairman of the Marion County Democratic Party. The law also exists to limit partisanship in the court system, so judges aren’t “playing politics” with each other, Treacy said.

Judges and officials like Treacy declined to comment specifically about the lawsuit. But they admit there are pros and cons with every system.

Tim Oakes, a judge in the civil division of the Marion Superior Court, said that changing an election system always brings potential issues for one side. “One guy’s way,” he said, “is another guy’s problem.”

But by and large, he said, the current system has been successful. He said he wasn’t sure how voters could be more involved, given that they can already vote in the primary election.

“It has worked, and it’s worked very well,” Oakes said. “And probably as well as any other system.”

The story continues:
Another method of appointing judges involves having an independent commission, of lawyers and others, interview candidates and nominate them to a governor. The governor then determines whom he or she wants. This is how judges in the Indiana Court of Appeals are appointed.
ILB: That is also how Supreme Court Justices are appointed.

Two Indiana counties, St. Joseph and Lake, have similar systems involving judicial nominating commissions for selection of their Superior Court judges. See IC 33-33-71-29 et seq. and IC 33-33-45-28 et seq.

[More] WSJ Law Blog has a story today about the law suit, unfortunately referencing what must be a 93rd Indiana county: "Merion."

Posted by Marcia Oddi on November 2, 2012 08:56 AM
Posted to Indiana Courts