Texas looks unlikely to change its controversial partisan election system for judges — even after a commission studying the issue recommended ending the practice.
On an 8–7 vote, the 15-member group recommended in a report released Thursday that the Legislature change the longstanding method in the state, which requires judges to run with a political party, often collecting campaign checks from the very lawyers, businesses and lobbyists whose cases land before their courts. But the group did not overwhelmingly back a replacement system.
For decades, critics including former judges have pointed out that the system allows for the appearance of bias for donors or political allies, if not not improper influence itself. But the issue has always been politically intractable at the Texas Capitol, where large majorities would be required to change it through a constitutional amendment.
This week’s report marks a familiar logjam for the issue, which has been pushed for decades by lawyers, judges and good-government advocates, who rarely make much headway with Texas’ political leaders.
The split on the new commission fell not along partisan lines, but mostly between the members who serve in the Legislature and those who do not, including former judges and high-profile attorneys from across the state. Most of the lawmakers — who would actually have the opportunity to vote on changes the system — said they were loath to take away their constituents’ right to vote on judges.
“I do not believe the citizens, my constituents of the state of Texas, want this right taken away from them, and I'm not gonna be in a position or be the one who does that,” state Sen. Joan Huffman, R-Houston, said at the committee’s final meeting in December. Huffman, who served as a trial judge in Houston, and said the experience of campaigning for the bench had been valuable.
The counterargument to that came most persuasively from former judges, who have been pointing out for years that while Texans say they cherish their ability to elect judges, they typically have little idea who they’re choosing between.
In Houston, for example, there are dozens of judges on the ballot, lists long enough that even top local attorneys struggle to familiarize themselves with every candidate.
In the absence of better information, voters often turn to the demographic clues they can glean from the ballot itself. In this year’s Democratic judicial primaries, for example, female candidates got more votes than male candidates in every gender-split race, about 30. And in Republican primaries, judicial candidates with Hispanic-sounding surnames have often fared poorly, owing, experts say, to a largely white electorate.
“Judges can be elected even though no one knows who they are,” pointed out Wallace Jefferson, who was the first Black chief justice of the Texas Supreme Court. Instead of vetting the qualifications of the judicial hopefuls they are choosing between, he said, voters often choose based on party affiliation, “or they vote based on the sound of your name.”
He was lucky, he joked, that he’d had a good ballot name.
“The notion that voters have studied every candidate is not borne out by the data,” said Tom Phillips, a former chief justice of the Texas Supreme Court who has been among the most vocal in calling for a change to the system.
Those who favor partisan judicial elections have pointed out that they may work better in rural counties, where voters are electing fewer judges and it’s easier to learn their qualifications.
But lawmakers serving on the group, from state Rep. Ina Minjarez, who represents a Democratic district in San Antonio to state Sen. Robert Nichols, whose East Texas district is largely rural and Republican, were mostly united in opposing a change.
“The system that we currently have works very well in my district and I cannot vote in any manner to change that,” Nichols said at the group’s final meeting in December. “I just want to make sure, on the record, that I’m gonna be voting to stay with the current system of partisan selection.”
A perennial issue for those in the legal world, partisan judicial elections reemerged into the political fray recently after a punishing 2018 election for Republican judges. Democrats flipped the four influential state appeals courts that serve Austin, Dallas and Houston, claiming majorities on courts where they had previously held no seats.
In the wake of the blowout, Republican Gov. Greg Abbott, himself a former judge, signaled an interest in the issue — sparking hope among those who had seen it die at the Capitol time and time again.
During the 2019 legislative session, Abbott quietly backed a bill that would have maintained the current system in Texas’ rural Republican regions while changing it in more densely populated, mostly Democratic counties. That bill, which failed, would essentially have allowed the Republican governor to pick judges in the state’s Democratic areas, while Republican voters picked judges in the conservative areas. Democrats slammed the proposal, with many calling it a Republican power grab, and an effort to undo the major gains people of color had made in 2018, an election that brought unprecedented diversity to the bench.
“The party that perceives itself as behind has always wanted change,” said Phillips, a Republican.
Instead of making a sweeping change, the Legislature created the 15-member commission to study the issue ahead of the 2021 legislative session — incremental progress, but progress nonetheless, on an issue that had for so long seemed impossible. Last time the Legislature created a commission to study judicial selection, in 2013, it did not meet a single time. This group met more than a dozen times.
Aside from the bias of partisanship, one of the chief concerns about the state’s partisan judicial selection system is the influence — perceived or actual — of donors who bankroll judges’ campaigns.
A GOP donor and financier who investigated a decade of campaign contributions and court rulings found that certain donor law firms, when representing billion-dollar companies, are 5.4 times more likely to win their cases at the Texas Supreme Court than the average party.
The committee voted to recommend that the Legislature “further regulate the role of money in judicial elections.”
A full rewrite to the system seems unlikely. But there was broad consensus in the group for increasing the mandatory qualifications candidates must meet in order to run for judge. Currently, Texas Supreme Court justices must be 35 years old, licensed to practice law in Texas and have at least 10 years of legal experience, while district court judges face no age requirement but must have been practicing in Texas for at least four years. Some have advocated raising the age and experience thresholds, or requiring judicial experience before judges can join one of the state’s two high courts.
Huffman, a powerful figure in the Texas Senate, said earlier this month she had already begun drafting a constitutional amendment that would increase judicial qualifications.