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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