In midterms, Democrats see a chance to disrupt GOP dominance of state appeals courts

Enough judicial seats are up for election that Democrats could flip the four sprawling appellate court districts that serve Austin, Dallas and Houston. Hillary Clinton won those districts in 2016.

The Austin-based 3rd Court of Appeals on Oct. 17, 2018.
The Austin-based 3rd Court of Appeals on Oct. 17, 2018.  Rachel Zein for The Texas Tribune

Republicans dominate Texas politics — but their stranglehold is especially noticeable in the courts.

Republicans hold all 18 seats on the state’s two high courts. Of the state’s 14 appeals courts, Democrats hold majorities on just three. On the other 11 courts, Democrats have no seats at all.

Democrats are hoping to flip that advantage on Election Day. In their eyes, the stars have aligned. They have a high-profile liberal darling running a competitive race for U.S. Senate at the top of the ticket. They have a controversial Republican president expected to generate backlash in his first midterm elections. And enough judicial seats are up for election that Democrats could flip the four sprawling appellate court districts that serve Austin, Dallas and Houston. Hillary Clinton won those districts in 2016, but the courts are currently held entirely by Republicans.

If Democrats can sweep those races in 2018, they’ll take control of half the state’s appeals courts. And strategists say that goal is in sight.

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“Democrats are gaining ground every day,” said Keir Murray, a Democratic strategist working on judicial races in Houston.

Long coattails?

Appellate judges, who serve as the intermediaries between the state’s scores of trial courts and its two high courts, are rarely top of mind for voters. Instead, judicial candidates rely on straight-ticket ballots, and lean heavily on the popularity of their parties’ leaders.

This year, Democrats are taking heart in that Beto O’Rourke, an El Paso congressman locked in a tight race against incumbent U.S. Sen. Ted Cruz, has progressives across the state energized. Strategists predict that even if he can’t topple Cruz, O’Rourke could bring out enough support in battleground areas like Dallas to flip some state House and Senate districts.

Democrats hope courts will be on that list, too. But O’Rourke’s coattails will have to be long.

No Democrat has been elected to the Dallas-based 5th Court of Appeals since 1992. The six-county district includes liberal-leaning Dallas, but also some of Texas’ most reliably red areas. In Dallas, as in Houston and Austin, large, urban centers contribute the lion’s share of the judicial district’s electorate, but right-leaning rural and suburban voters in surrounding counties have handed victories to Republicans for the past several election cycles. Only the 4th Court of Appeals, based in San Antonio, has a partisan split with Democrats in the majority. The Legislature controls these maps; the districts have changed only twice since 1967, most recently in 2005.

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Texas Courts of Appeals Districts.
Texas Courts of Appeals Districts.

This year, Democrats are hoping to narrow their losing margins in the deepest-red counties and pick up votes in city centers. But Republicans are skeptical that that strategy will push them over the top.

“We’re definitely going to win. There’s no question in my mind,” said Bunni Pounds, a Republican strategist and former Congressional candidate working on several Republican judicial campaigns in North Texas. But she also acknowledged that turnout so far indicates that Republican victories may not be as handy as they have been in the past.

“The turnout is in models with the presidential year, which means our percentages will be lower,” she said.

Ken Molberg, a district judge in Dallas, ran for 5th Court of Appeals in 2014 and came up nearly 72,000 votes short. This year, in another attempt, he’s confident things will be different. Molberg, a former Dallas County Democratic Party chair, has accumulated several hundred thousand dollars — an impressive sum for such an unstudied race — and said his region of the state is “ground zero for the party this go around.”

“The potential to switch this court in one election cycle is there, and it would be somewhat earthquake-like if that happened,” Molberg said. “It’s a tough race all the way around, but my analysis is that it can be done.”

Molberg is the best-funded of the eight Democrats battling Republicans for seats on the 13-justice court. But he said the slate will likely succeed or fail as a group.

“I don’t think individual campaigns have any effect at the court of appeals or district court level. … That’s an example of where you’re almost entirely dependent on straight-ticket voting,” said Jay Aiyer, a political science professor at Texas Southern University. “At the courthouse level, it’s easier for one party to dominate.”

Voters rarely differentiate much between down-ballot judicial candidates. A woman may outperform a man, or a Hispanic-sounding name may make a point or two of difference, but for the most part, the candidates will “sink or swim” together, Murray said.

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That means if Democrats win at all, they’re more likely to win big. Courts that serve urban areas could flip entirely, not just inch toward the middle.

That would yield much-needed ideological diversity, Democratic candidates said.

“There is a real conformity, a uniformity of judicial thought on these courts that I think would really benefit from different experience,” said Meagan Hassan, who’s running as a Democrat for the Houston-based 14th Court of Appeals. She pointed to the tiny fraction of dissenting opinions written by Houston-area appellate judges, arguing that ideological balance is needed for the critical decisions these courts make.

In Tyler, for example, an all-Republican court of appeals struck down as unconstitutional the state’s new “revenge porn” law. The 3rd Court of Appeals is currently weighing the city of Austin’s paid sick leave ordinance. And state appellate courts are the last appellate stop for the vast majority of criminal cases in the state — yet many state appellate judges have no background in criminal law.

Democratic wins, Hassan said, “would bring balance to the court that hasn’t existed there in 25 years.”

“If not now, when?”

Harris County has the longest ballot in the country, with 75 judges up for election, said Harris County GOP chairman Paul Simpson. Republicans there have mobilized to prevent ballot fatigue and keep Democrats from flipping the two appellate courts in the area.

“We’re working doubly hard, all the way down the ballot. Best I can tell, they’re hoping Robert Francis O’Rourke carries the whole ballot for them,” Simpson said, using Beto O’Rourke’s full name.

That may not be a bad strategy.

Harris County, the state’s most populous, long held out as Republican, but in recent years has begun to tinge bluer. In the Houston area, Aiyer said, it’s “only a matter of time” before the appellate courts flip, too.

The story is much the same hundreds of miles west in central Texas, where Democrats have fielded candidates in all four races for the Austin-based 3rd Court of Appeals.

Mike Toth, a Republican appointed to the court by Gov. Greg Abbott in September, is fighting to hold onto his seat in an appellate court race that’s proved perhaps the ugliest in the state. Toth has embraced Trump-style campaign issues (one mailer prominently features the president’s face) and accepted thousands in campaign donations from the hardline conservative group Empower Texans, which recently had an ethics-related case revived by the appellate court. Democratic challenger Gisela Triana, a district judge in Travis County, is hoping Toth is controversial enough to propel her to victory. All told, more than $1 million has been raised for the down-ballot contest.

“Voters understand the importance of the judiciary today more than ever,” said J.D. Rimann, Toth's campaign manager. “We are taking nothing for granted and are working hard to reach every voter we can before Election Day. We are confident that Republicans will hold the Third Court of Appeals.”

Asked whether Democrats can pull off a sweep, Chari Kelly, a well-connected Austin prosecutor running as a Democrat for a different seat on that court, didn’t hesitate.

“Oh yes,” she said. History is her guide: Two years ago, when Clinton won the Central Texas judicial district, two Republicans ran unopposed and won seats on the court.

“The blue wave came. There was no one there,” she said. This year, she said, Democrats are poised for that wave — be it a tsunami or a ripple.

“If not now, when?” Kelly asked.