Voting With Just a Little Bit of Information

This will hit you on Tuesday, unless you voted early and already had the experience: At the bottom of the statewide ballot are names of people who want to wear robes and dispense justice, and if you know your way around that roster, you’re in the minority.

If you know all of them, you either work in the courthouse or you’re a campaign consultant.

If we’re going to elect judges, why do we make it so hard to learn enough about them to vote intelligently? It’s hard for them to raise money from anyone who doesn’t have business before them. They are supposed to remain impartial even while running as partisans.

In a state with 26 million people, it’s difficult to get past the standard of “That’s a pretty good ballot name.”

Some judges — Justice Don Willett of the Texas Supreme Court is a recent example — take heed of recent federal court rulings that hack away at restrictions on what judges can talk about during campaigns. Broadly speaking, they can talk about issues, as long as they’re not getting too close to telling people how they would rule in particular cases.

He’s on the state’s highest civil court, where candidates are more likely to have some financial support for their campaigns. Lots of that support comes from people who might appear before the court — lawyers and potential litigants — because, as it turns out, it’s easier to get people to contribute in their own interests than in plain old civic interest.

The evidence for that — the money the candidates are able to raise — can be found just one step down the ballot, where voters find the names of potential judges for the Texas Court of Criminal Appeals. That’s the state’s other high court — the one that handles criminal law.

The shorthand, politically, is that there is more money in civil cases, where economic interests are balanced, than in criminal cases, where the life-and-death cases are decided. And there is more campaign money available for Supreme Court races than for the contests at its criminal twin.

What are voters to do?

They could actively research the races, but that’s really the province of participants — lawyers, consultants, journalists and so on. They could use party cues, which is generally the default, especially in a state with such widespread straight-ticket voting.

Sometimes there is a little more information available. The presiding judge on the Court of Criminal Appeals, Sharon Keller, a Republican, has committed news a couple of times during her tenure, creating the possibility that voters know something more about her than her party affiliation. Her opponent, Keith Hampton, an Austin Democrat and criminal defense lawyer who has swept the legal bar polls and newspaper endorsements, says the key to the race is connecting her name, in voters’ minds, to the stories about her.

The first controversy started when Keller turned away a last-minute appeal that came in shortly after a 5 p.m. deadline in the case of Michael Wayne Richard in 2007. After some convoluted disciplinary hearings, an appointed special master said what Keller did was embarrassing but not worthy of official sanction. Keller next made the headlines when The Dallas Morning News reported she didn’t include more than $2 million in real estate holdings in mandatory state ethics disclosures.

Hampton says voters know some of that history but don’t necessarily link her name to it. He has raised about $80,000 for his race (Texas Supreme Court races regularly run into the millions of dollars) and is trying to help voters with the dots he wants them to connect. He’ll get the results of his experiment in politics on Tuesday night.

But this is a rare case in which actual information might leak into a judicial race that might otherwise turn on the colors of the candidates’ partisan flags.

Hampton said he would like to pull together a group of reformers — some known, some not — to talk about changing the way Texas chooses its judges. How would that change the courts?

“They would be an older crowd, with longer track records, with board certifications,” he said. “We’d have some diminishment of the judiciary being changed by these political mood swings. They’d be more diverse. And you wouldn’t necessarily know what party they were from.”