As a consequence of Hillary Clinton’s overwhelming victory in the presidential election, Democrats locally swept every district and county judgeship. The hundreds of thousands of voters who unceremoniously ousted all Republican judges did so because they voted straight-party Democratic. They came to defeat Donald Trump and by one quick click defeated every other Republican on the ballot. (The GOP judges who survived were in appellate courts covering more than Harris County.)
Of course, straight-party voting elected Republican judges in past sweeps, especially in nonpresidential, or gubernatorial, years. In politics, the cruel truth is, “Live by the sword, die by the sword.”
One of the victims on Election Day was District Judge Ryan Patrick, a well-regarded first-term jurist who had received many endorsements, including from this newspaper. Patrick is the son of Lt. Gov. Dan Patrick, who is said to favor abolishing the option of straight-party voting. This would be a wise and statesmanlike act by a major Republican leader while his party continues to hold near-two-thirds majorities in both houses of the Texas Legislature.
But doing away with straight-party voting is only one electoral reform the Legislature needs to consider next session. Another is to abolish party labels on judicial candidates altogether. Texans prefer electing their judges, which is why voters fill all benches from the state Supreme Court down to justice of the peace. It is also why proposals to appoint judges have never gotten anywhere.
Yet if we are to have an elected judiciary, we don’t have to have a partisan one. In the 1979 legislative session, right after Texas chose its first Republican governor in modern times, I introduced a bill for the nonpartisan election of judges. I figured that Democrats, then the massive majority, would want to preserve their judges against an incoming Republican tide.
Wrong. My Democratic colleagues bet that their day would come again, and it did – but only for a while.
This is a moment, when the state’s political tide may shift again, to exempt judges from the peculiar passions of a general election. We should hold judicial elections in November of odd-numbered years. This would shorten the ballot in general elections like 2016’s, when Harris County voters had to decide no fewer than 37 judicial races. It would also allow voters to study the candidates, their judicial philosophy and who supports them.
Since the current Texas constitution was adopted in 1876, there has been a statewide referendum on proposed amendments to the document every odd-numbered year. Thus the state is already paying for an election; it would have to pick up the added cost of runoffs.
There would be some other practical issues with moving to the nonpartisan election of judges.
Houston city elections are held in November of odd-numbered years, and local conservatives might fear subjecting now-Republican judges to a liberal electorate. But the 2015 City Charter change giving four-year terms to all city elected officials means no municipal elections in 2017, 2021, 2025, etc. This is when elections for district and county judgeships could be held.
Because party labels are a shorthand way of determining judicial philosophy, the nonpartisan election of judges would increase the use and importance of endorsement slates and newspaper editorials. Such slates – some determined by interviews with candidates, others by the purchase of an ad in the endorsement mailer – are already influential, especially in party primaries.
Republicans today, like Democrats a generation ago, might prefer taking their chances with the current partisan system of choosing judges. But the 2016 election was a warning that GOP candidates in Harris County may be doomed in every presidential election year from now on, and some analysts predict Republican doom in gubernatorial years as well.
No system is perfect, and voters may always puzzle over unfamiliar names on a long judicial ballot. But the status quo is decidedly imperfect – and increasingly ominous for local Republicans. Just ask Ryan Patrick.
Untermeyer was a Republican state representative from Houston from 1977-81.