An important new lawsuit involving Texas judicial elections adds a critical perspective on how expensive judicial elections harm people of color.
In a state with a 56% nonwhite population, the Texas Supreme Court has more justices named “Jeff” than it does people of color. Now, civil rights advocates are looking to change that: Signaling a timely new appetite for systemic reform, a new challenge to the state’s method of selecting high-court judges could have massive implications for the emerging national concern for fairness in our state courts.
Last Wednesday, the biggest challenge to how Texas chooses its judges in fifteen years was filed in the U.S. District Court for the Southern District of Texas. The Washington, D.C.-based Lawyers’ Committee for Civil Rights Under Law filed a complaint alleging that Texas’s elections for its two highest courts—the Texas Supreme Court and the Texas Court of Criminal Appeals—violate the Voting Rights Act. According to the Lawyers’ Committee:
Because White Texans comprise the majority of the citizen voting age population in the state, and because Latinos consistently prefer different candidates than do Whites, Latino-preferred candidates are almost never elected to the highest levels of the state’s judiciary. Such vote dilution is prohibited by the Voting Rights Act and the state could develop and implement a more representational electoral method.
Indeed, despite being one of the most diverse states in the country, Texas has perhaps the largest demographic disparities when it comes to the judges that sit on its highest courts and the communities they serve. According to the U.S. Census Bureau, the percentage of voting-age Latinos in Texas from 2008-2012 was 26%, while the percentage of voting-age Whites was 56%. Yet as the complaint makes clear with alarming detail, only five of the 76 justices who have served on the Supreme Court since 1945, or 6.6 percent, and only two of the 48 judges that have served on the Court of Criminal Appeals, or 4.2%, have been Latino. In fact, no Latino candidate has ever won election to either court without first being appointed by the governor. This trend shows no sign of stopping: In 2014, ninety-three percent of high-court candidates in Texas were white. And of the two female candidates, including one woman of color, neither received more than 38% of the vote on Election Day.
Section 2 of the Voting Rights Act prohibits any “standard, practice, or procedure”—including how a state picks its judges—that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” The plaintiffs in this case, seven Latino voters, allege that Texas’s system “submerges Latino voters so that they are rendered ineffective electoral minorities in most every election for both courts.”
That’s also consistent with what we know about the racial and economic inequities among the funders of judicial elections. Communities of color, facing greater fundraising obstacles in a system where money can buy results, often suffer the most when big money floods judicial elections. In Texas’s 2014 high-court elections, nearly 90% of all campaign contributions were at least $1,000. Reflecting national trends—wherein over 90 percent of contested judicial seats nationwide were won by the candidate who raised the most money—the candidates in Texas who raised the most won: All four incumbent judges—who each received major donations from the oil, gas, and finance industries—were reelected by large margins, as total contributions to these candidates—which often come from donors who had, have, or will have business before these courts—hit nearly $3.7 million.
That’s why we need structural reform to change how judicial elections are funded—not just tinkering with a broken system. By complementing and building upon efforts like these in Texas, we can restore the ideal of “equal justice under law.”