Saturday, February 12, 2011

Real-world evidence supporting non-partisan judicial primaries in Illinois

Albert J. Klumpp, PhD, a Research Analyst with the Chicago firm of McDermott Will & Emery LLP, read my post last month endorsing the concept of non-partisan judicial primaries and left this comment:
Any sort of significant change to our selection system needs to be based on real-world evidence that a different system would be an improvement. (Such as by comparison across systems in different jurisdictions.) Unfortunately that evidence hasn’t been produced—not yet. And the legal community has always been too content to simply offer theoretical arguments without supporting evidence. The electorate that needs to approve a change isn’t likely to be convinced by theory.
These are valid points. People are unlikely to support constitutional change unless they are convinced a proposal is valuable and useful. I can't provide comparisons to different states.

But I can provide some real-world evidence to show why a change to a non-partisan judicial primary is warranted.

According to the Illinois State Board of Elections, a total of 761,626 Cook County voters took ballots in the 2010 primary election.

But nearly 22% of these (21.72706814% if we're being fussy) were denied the opportunity to vote in ten of the 11 countywide judicial primary elections (eight Circuit Court races and three for the Appellate Court). And of these 165,479 voters, only the 161,878 Republican primary voters had the opportunity to choose between two candidates for the countywide McCarthy vacancy.

None of these 165,479 voters had the opportunity to vote for subcircuit judicial candidates, no matter what subcircuit they lived in. There no candidates except Democrats in any subcircuit primary this year.

In 2010 there were, according to the ISBE, 1,424,959 total Cook County voters in the November general election. Why one of every two general election voters is willing to let others narrow the field for them is a question best left to the academics. But primary voters are not content to let others limit their choices; by definition, they show up to make their own choices. But when it comes to judicial candidates, 165,479 voters were essentially shut out of the process, even though they were at the polls.

One may say that this is the fault of the Republican Party. The Republicans could, in theory, furnish their own slate of candidates in every judicial race, thereby insuring that every voter in the fall would have choices. But, in recent years, successful Republican candidates in Cook County are about as common as unicorns. It is understandable, then, that persons seriously aspiring to judicial service in Cook County do not seek office as Republicans.

This, of course, will change. Change is the one constant of the universe. (At one time, the peaks of the Himalayas were a primeval ocean floor.) Frankly, a Republican revival could happen as soon as the next election cycle. But I won't take bets on it.

The Democratic judicial primary functions as a de facto non-partisan primary anyway: For example, in 2008 and 2010, Thomas "TJ" Somer, who was once elected Bloom Township Supervisor as a Republican, filed for 15th Subcircuit vacancies. Other examples could probably be found. But if the Democratic primary attracts all candidates, why shouldn't that primary also be open to all voters?

Where judges are elected, denying one in five voters the chance to choose their judges is a scandal. But it's easily remedied and won't cost voters a dime.

Is there any interest in Springfield?


Eileen K. Carpenter said...

I feel the same way. There are places where there are open primaries, like Louisiana. There is always a risk of a minority group with a strong unifying issue getting their candidate in the final election (e.g., David Duke). But then everyone unites against him in the general election, and it sorts itself out.

However, the current system effectively subsidizes political parties' attempts to choose their own candidates. Government funding supports elections that only members of particular parties can vote in. (In some places they can at least cross parties so long as they only vote in one primary, but in others, independents are completely excluded from voting in the elections their tax dollars are financing.)

Political parties aren't going to want to spend money to hold a pre-primary to choose the most viable candidate, and they are rightly afraid that a candidate with overwhelming negatives will be their representative in the general election (e.g., Christine O'Donnell). There would be a huge risk of people being paid off not to run to narrow the field before any voters get a chance at them at all.

Anonymous said...

More importantly, the only reason for partisan elections is to suggest a predisposition toward a particular point of view on any given issue. Judges, however, are not suppose to express political views. Why then should judges choose between being Republican or Democrat.

Albert said...

Absolutely true that the current system excludes and frustrates some of the electorate. And not just Republicans. As an independent, it really bugs me that if I want any meaningful vote on my judiciary I’m forced to request a Democratic ballot every time. Certainly a switch to a nonpartisan ballot would fix the problem and open up the judicial contests to everyone.

But addressing one problem might create or exacerbate others. Party identification is the overwhelmingly dominant ballot cue at present. If you remove the party cue from the ballot, the influence of other cues—gender, ethnicity, and ballot position—will only grow. And they’re already very influential. Do we want to make that tradeoff?

And then there’s the money issue. Lots of concern these days about the increasing influence of money in judicial elections. Remove the party cue and it’s very possible that party organizations will crank up the fundraising and spending to get the word out about who their candidates are. It also may tilt the system towards independently wealthy individuals or candidates funded by special interests.

All or none of this may happen; the point is that we have to be careful and make changes with a full understanding of what we’d be getting into.