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Texas is one of only two states that initially elects and then re-elects its judges in partisan elections where voters have the option of casting a straight-ticket vote. A consequence of this rare combination of partisan elections and straight-ticket voting is extremely limited variation in the share of the vote received by judicial candidates and a concomitant tendency for judicial election sweeps whereby one party wins all of the judicial races within a jurisdiction, be it at the statewide, appeals court district, or county level. At present, an overwhelming majority of Texas judges are elected based not on their legal qualifications and judicial philosophy, or even on their own campaign efforts, but rather on the performance of their party (in the straight-ticket vote) and of their party’s top-tier candidates (e.g., presidential, gubernatorial) within the jurisdiction where their race is being contested.
Approximately one-half of the 50 U.S. states select their supreme court and intermediate court judges via the use of a judicial nominating commission which proposes a slate of candidates to the governor who appoints the judges, either with or without confirmation by the state senate. A little more than two-fifths of the states select their supreme court and intermediate court judges via popular elections, nonpartisan in two-thirds and partisan in one-third. Almost three-fifths of the states select their trial court judges in popular elections, two-thirds in nonpartisan elections and one-third in partisan elections.
In 1992, 20 states provided voters with a straight-ticket voting option. Two dozen years later, that number had dropped by half to 10 in 2016. During this same time period the proportion of Texans who cast a straight-ticket vote steadily increased, with more than three-fifths of the state’s voters casting a straight-ticket vote in the last three elections (2012, 2014, 2016). In many counties such as Harris, Dallas, Tarrant, Fort Bend, and Montgomery, two out of every three voters now vote straight-ticket.
Analysis of judicial elections between 2008 and 2016 reveals that a party’s judicial candidates running in the same jurisdiction tend to receive shares of the popular vote that are extremely similar. The median difference in the vote share received by the majority party’s candidates was 0.58 percent in statewide judicial races, 0.52 percent in court of appeals races, and 0.96 percent in county-level races in the 20 most populous counties. This limited variance underscores the reality that an overwhelming majority of voters are indirectly voting for a party’s judicial candidates via their straight-ticket vote, often not even looking at the judicial races on their ballot.
The principal consequence of this limited vote-share variance is the prevalence of partisan sweeps at the statewide, appeals court district, and county levels where a single party wins all of the judicial races on the ballot within a jurisdiction. Between 2008 and 2016 an average of 100 percent of statewide, 94 percent of appeals court district, and 88 percent of county-level jurisdictions experienced partisan sweeps. And the trend is toward an increasing prevalence of sweeps, with 100 percent of the appeals courts and between 90 and 95 percent of the counties experiencing partisan sweeps during the two most recent electoral cycles.
Harris County elects more judges at the county level (district and county court) than any other county. It also is arguably the most competitive of the state’s five most populous counties, with Democrats winning the largest share of the vote in three of the past five elections and Republicans winning the largest share in two. There exists very little variance in the share of the popular vote won by a party’s county-level judicial candidates in Harris County, with more than half of a party’s candidates having a share of the vote that is within one percent of their fellow judicial candidates. As a result of this limited variance, when a party wins the straight-ticket vote by more than a fraction in the county, it wins either all (100 percent in 2010, 2014, 2016) or most (85 percent in 2008) of the judicial races.
The partisan sweeps in Harris County often result in the defeat of the judicial candidate who the members of the Houston Bar Association (HBA) consider to be the superior candidate. The data suggest that the attorneys base their preferences more on a candidate’s skills, experience, and philosophy as a jurist than on his or her partisan affiliation. In some elections, approximately two-thirds of the candidates preferred by HBA members lose, victims of the partisan sweep caused almost exclusively by their party’s overall sub-par performance.
Every legislative session, bills are introduced to reform the methods by which Texas judges are selected. Here, four prominent potential reforms are presented, along with a summary of their principal advantages and disadvantages. These reforms could be implemented for the selection of all judges or of only a subset (e.g., trial court judges), in the latter case following the model of the dozen states that utilize different methods to select their appellate court and trial court judges.
The reforms vary in the extent to which they would deviate from the status quo in Texas, with the first two requiring the amendment of the Texas Constitution and the latter two possible to implement via statute alone. The most extreme reform utilizes a judicial nominating commission to draft a slate of candidates from which the governor appoints a judge, with the governor endowed with the power of reappointment. The second reform employs an identical initial appointment method via a judicial nominating commission, but reappointment is determined by a retention election whereby voters are given the option to retain or remove a judge.
The third reform maintains the popular election of judges, but removes the partisan label for judicial candidates along with the direct role of the parties (i.e., party primaries) in the candidate-selection process. The fourth reform is identical to the current selection method employed in Texas, with the exception that the straight-ticket option does not apply to judicial elections and the ballot is redesigned to ameliorate the effect of this reform on ballot roll-off (i.e., undervoting).
This material may be quoted or reproduced without prior permission, provided appropriate credit is given to the author and Rice University’s Baker Institute for Public Policy. The views expressed herein are those of the individual author(s), and do not necessarily represent the views of Rice University’s Baker Institute for Public Policy.
