Marion County’s unique power-sharing judicial-election system won’t be fixed anytime soon, even though a federal judge has ruled the four-decade-old system is unconstitutional.
Indianapolis voters will go to the polls Nov. 4 and elect 16 Marion Superior judges, but in truth there’s no contest because who will win already is decided. Eight Democrats and eight Republicans selected in their respective parties’ May primary elections appear on the ballot unopposed. This election could be the final time Marion County judges are chosen this way.
Attorney General Greg Zoeller’s office waited until after 5 p.m. on Oct. 17 to announce the state would appeal the Oct. 9 decision by Chief Judge Richard Young in the Southern District of Indiana. Zoeller previously had declined comment on the federal court’s decision.
Young’s 19-page order ruled the election statute pertaining to Marion County Superior judges unconstitutional because it imposes a severe burden on the right to vote.
While not directly addressed in the ruling, the system also enabled slating, whereby judicial candidates who made five-figure donations to their county party organizations received ballot preference and the party’s stamp of approval during the primaries.
Young wrote that the deprivation of a meaningful general election ballot for judicial races was illustrated by Marion Superior Courts’ announcement of which judges would preside in which courts beginning Jan. 1, 2015 – two months before those judges’ elections.
The opinion appeared to take officials by surprise, and key lawmakers said they are in no hurry to address yet another Marion County judicial crisis.
House Judiciary Committee Chairman Rep. Greg Steuerwald, R-Danville, said the General Assembly already has reform of the unique Marion County Township Small Claims courts on its plate for the session beginning in January. The 7th Circuit Court of Appeals ruled each of those nine venues is a judicial district, a holding that nullifies forum-shopping by large-volume debt-collection filers that had been rampant in the courts in prior years.
Because Young’s decision is stayed until after the Nov. 4 election to allow for an appeal and the next race for Marion Superior judges will be in 2018, “I don’t anticipate anything happening this session at all” on the county’s judicial elections, Steuerwald said.
“I anticipate it’s going to have to go through a long review process with all the interested parties,” he said. “It’s so new that we’ve not gotten into it at all.”
Sen. R. Michael Young, R-Indianapolis, is a member of the Senate Judiciary Committee. He said he wants to see the ruling appealed before the Legislature does anything. He’s critical of the ruling and chided Chief Judge Young’s holding that the law limits candidates’ ability to run. “His logic, I think, is missing a little bit,” he said.
While there are only 16 candidates for 16 judgeships on the ballot, Sen. Young said, “that’s only because other people have chosen not to run. … Anybody that wants to run for judge can run as an independent.” Further, he said, “There’s nothing that keeps other political parties out of the election process.”
But the federal court found that argument lacking.
“(T)he potential for independent and third-party candidates to appear on the ballot does not alleviate the burden imposed by Indiana’s electoral scheme: when a person proceeds to the ballot box on Election Day, he or she must be afforded an opportunity to vote for the judge who will fill Marion Superior Court # 1, the judge who will fill Marion Superior Court # 2, and so forth. Indiana law does not permit this,” Chief Judge Young wrote.
One Indiana academic expert on judicial selection says that from a purely political perspective, Marion County likely would become a merit-selection county.
“Changing the system to a direct election with, for example, 32 candidates (16 Democrats and 16 Republicans) for 16 positions seems very unlikely. I’d be surprised if the Republican-controlled General Assembly took that approach,” said Indiana University Robert H. McKinney School of Law Professor Joel Schumm. “Considering recent voting patterns in Marion County, Democrats would likely sweep all of those judgeships.”
A merit-selection system, which consists of commission-based appointments like those in place in Lake and St. Joseph counties, seems likelier, he said. “The process has worked well there, and it would work well in Marion County. … Lawyers would no longer be asked to contribute to judges’ campaigns, which is an added bonus.”
Indiana University Maurer School of Law Professor Charles Geyh said merit selection appears to enjoy wide support based on retention votes for appellate judges appointed this way. But that doesn’t necessarily mean such a process is in Marion County’s future.
“The problem is that beginning in the ’90s, proposals to introduce ‘merit selection’ … systems around the country have become increasingly vulnerable to the argument that they deprive citizens of their right to vote – and nobody likes that,” Geyh said.
“But direct election of trial judges in urban counties delegates selection to an electorate that lacks the time or inclination to educate itself sufficiently to cast informed ballots in a boatload of judicial races – and nobody likes that.”
Schumm agreed that direct voting in wide-open races for 16 or 20 judgeships, depending on the election cycle, is an unwieldy prospect that would lead to low-information contests. In smaller counties, voters are likelier to know and have some opinion about fewer candidates for fewer seats on the bench, but that’s not usually the case in large cities.
“They’re focused on what would make a good judge,” he said of judicial races in smaller counties. “With the slating process, I worry that sometimes the focus is on what makes someone a good Democrat or a good Republican.”
The American Civil Liberties Union of Indiana successfully argued the case, Common Cause Indiana v. Indiana Secretary of State, et al., 1:12-CV-01603.
“The right to vote guaranteed to the citizenry by the Constitution is the right to a meaningful vote,” Ken Falk, legal director of the ACLU of Indiana, said after the ruling. “We applaud Chief Judge Young’s decision today, which ensures citizens will have that right.”
But how that vote will look in the future is anyone’s guess.
“It is a testament to our ambivalence over how to select judges, that Marion County endured so perverse a system of selecting judges for so long: as bad as it may have been, no one could agree on what system to replace it with,” Geyh said.•