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77 Judicature 316 (1993-1994)
How Minority Judges Fare in Retention Elections

handle is hein.journals/judica77 and id is 330 raw text is: How minority judges fare in retention elections A study of nearly every judicial retention election in the United States from 1980 to 1990 shows no correlation between whether a judge is black or Hispanic and the percentage of affirmative votes the judge received. by Robert C. Luskin, Christopher N. Bratcher, Christopher G. Jordan, Tracy K. Renner, and Kris S. Seago Over the past decade or so, a relatively new criterion has increasingly flavored the long-contentious issues of judicial selection. Understandably dis- satisfied with the relatively small pro- portion ofjudges who are black or His- panic, many in the legal community, not to mention many black and His- panic organizations, have urged the importance of a more racially repre- sentative bench. One feature of many elective sys- tems that has probably contributed to this underrepresentation is the elec- tion of judges at-large from relatively large constituencies, in which blacks and Hispanics are rarely if ever majori- ties. Certainly states with systems like this enrobe blacks and Hispanics at disproportionately low frequencies. In Texas as of 1991, for example, blacks and Hispanics accounted for roughly one-third of the state's population but only 45 of the state's 396 district court judges and only 3 of its 80 appellate court judges. Such at-large elections are appar- ently on their way out. In Thornburg v. Gingles,' the U.S. Supreme Court ruled that at-large elections may violate Sec- tion 2 of the Voting Rights Act of 1982, which prohibits electoral practices un- der which the members of a class of 316 Judicature Volume 77, Number 6 citizens protected by the VRA ... have less opportunity than other members of the electorate to participate in the political process and to elect represen- tatives of their choice. Now, in Chisom v. Roeme2 and Houston Lawyers v. Texas Attorney General,' the Court has added that judges are representatives in the sense of Section 2 and directed the lower courts to consider the merits of challenges brought against at-large ju- dicial elections in a number of mostly southern states in that light.4 Already, some of these and other states are scrambling to revise their ju- dicial selection systems. No doubt the simplest solution would be to split the at-large constituencies into smaller, single-member districts, while con- tinuing to use partisan elections. If the legislature accepts the February 1992 recommendations of a gubernatorial task force, New York, for one, will fol- low this path.5 Given the geographical concentration of minority popula- tions, smaller districts, unless very art- fully drawn, can be expected to in- clude a much larger proportion of majority-minority districts, whose predominantly black or Hispanic populations are likely to install black or Hispanic judges. Yet this solution may not be univer- sally leapt at. Many white politicians and lawyers may be reluctant to sur- render a larger share of office and power. Much of the white public may distrust the impartiality, competence, or integrity ofjudges chosen by major- ity-minority electorates. Legislators may fear that judges elected from more racially homogeneous constitu- encies will tend to be less sensitive to the minorities within their districts. Apart from pure appointment, the most obvious alternative is the widely used merit selection system, or Mis- souri Plan, which couples initial ap- pointmemt with either one-time or periodic review by means of non- competitive, nonpartisan elections. Though still subject to court approval, the June 1992 agreement between Georgia Governor Zell Miller and the plaintiffs in a lawsuit challenging the state's judicial selection procedures in- This research was funded by the Texas Legislative Council, to which the authors are grateful. The authors also thank the anonymous reviewers and the editor for suggestions and Kate Sampson and Susan Carbon for helpful information and advice. 1. 478 U.S. 30 (1986). 2. 501 U.S. 380 (1991). 3. 501 U.S. 419 (1991). 4. The states are Alabama, Arkansa, Florida, Georgia, Louisiana, Mississippi, Illinois, Ohio, and Texas. New York's system of electing judges by counties is now under challenge as well. New Mexico settled a suit without altering its method ofjudicial selection. 5. Sack, Panel Faults Method of Electing Justices, N.Y. Times, February 12, 1992, at A-17. May-June 1994

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