Voter Rejection of Political Tampering with the Courts Doesn't Quell Special Interest Efforts in '06 Judicial Elections
JAS via BBSNews 2006-11-08 -- WASHINGTON, DC – 2006 proved to be the most threatening election yet for fair and impartial courts, despite clear warnings from Americans not to tamper with checks and balances. Voters rejected referenda, many of them bankrolled by out-of-state special interests, that would have tampered with courts in Colorado, Hawaii, Oregon and South Dakota. But judicial campaign contribution and advertising records were smashed in numerous states holding high court elections, even as special interests poured record money into trial court contests and demanded that would-be judges take sides in advance on hot-button issues. In states with well-established efforts to ward off the "new politics of judicial elections," interest groups had far more difficulty getting traction.
"Special interest attempts to thwart impartial justice are here to stay," said Bert Brandenburg, executive director of the Justice at Stake Campaign. "But 2006 showed that Americans will reject political tampering with the courts if they understand the threat."
Anti-Court Ballot Measures
The most closely watched anti-court ballot measure, the so-called "JAIL 4 Judges" proposal in South Dakota, was dealt a devastating defeat. Ninety percent of South Dakotans rejected the measure, which would have stripped judicial immunity and established an unaccountable fourth branch of government to intimidate judges.
"JAIL supporters may try elsewhere, but South Dakotans showed that people don't want radicals tampering with the rule of law by making judges accountable to fringe special interests," said Brandenburg.
Special interest ballot measures designed to manipulate the functioning or composition of the courts in three other states were rejected:
In addition, in Montana, Constitutional Initiative #98 would have provided for the recall of judges over individual decisions—even though every judge there already stands for election. The measure was thrown off the ballot this fall due to a "general pattern and practice of deceit, fraud and procedural non-compliance" by out-of-state signature gatherers.
Spending and Advertising Records in Court Elections
Voters also went to the polls in 22 contested Supreme Court races in 10 states on November 7. Campaigns for seats on America's high courts have turned into expensive, contentious and often partisan brawls in many states, and that trend accelerated this year as numerous states broke records in campaign fundraising and television advertising. "Vote no" campaigns were directed against judges facing retention elections in a series of states, including Illinois, Iowa, Nebraska and Utah.
Spending on television advertising by candidates, political parties, or third party interest groups eclipsed $16 million. Ads appeared in 10 of 11 states with a contested Supreme Court election this year (compared to only 1 of every 4 states in 2000) according to data supplied by the Brennan Center for Justice, a Justice at Stake partner. Candidate fundraising records were set in at least four of the 11 states, and at least eight high court campaigns saw combined fundraising totals climb past $1 million. Pre-election disclosures indicated that candidates themselves raised about $30 million, a number that could skyrocket when final reports are filed. Interest groups in Alabama, Georgia, Ohio and Washington spent millions more supporting or opposing their preferred candidates.
Perhaps most disturbing, such trends appear to be seeping down the ballot: two candidates for an Illinois Court of Appeals seat raised more than $3 million, making this campaign the most expensive appeals court race in Illinois history, and probably the most expensive race for a non-high-court seat in American judicial history. The appeals court campaign drew much of the big money and special interest activity that smashed national Supreme Court fundraising records in 2004, when two candidates in the same southern Illinois district raised a combined $9.3 million. In Tuesday's race, challenger Bruce Stewart was elected despite being out fundraised by his opponent by more than 2 to 1. In the same judicial district, candidates in a circuit court campaign raised over $600,000, breaking state records. Americans for Limited Government (ALG), a Chicago-based interest group, dumped at least $175,000 into a successful effort to unseat a circuit court judge in Cole County, Missouri.
The most expensive Supreme Court campaign of 2006 was the contest for Alabama Chief Justice. Incumbent Chief Justice Drayton Nabers withstood a bruising primary challenge from fellow Republican Justice Tom Parker, but was defeated in the general election by Democrat Sue Bell Cobb. Cobb becomes the lone Democrat on Alabama's high court. Combined, the three candidates reported over $6.7 million in contributions through late October. Since 1993, candidates for the Alabama Supreme Court have raised over $52 million, tops in the nation.
In Georgia, millions were spent on TV ads in one of the most negative judicial campaigns in American history. The Safety and Prosperity Coalition, an interest group that received the majority of its funding from the American Justice Partnership, an arm of the National Association of Manufacturers, reported raising over $1.8 million in an effort to defeat Justice Carol Hunstein. In one of their ads, the SPC said: "Carol Hunstein…voted to throw out evidence that convicted a cocaine trafficker…[she] even ignored extensive case law and overruled a jury to free a savage rapist." Hunstein's campaign aired an ad attacking her opponent, Mike Wiggins: "Mike Wiggins was sued by his own mother for taking her money. He sued his only sister. She said he threatened to kill her while she was eight months pregnant." Justice Hunstein won re-election to the Georgia Supreme Court easily. She's the first judicial candidate in Georgia to raise over $1 million for a campaign.
Interestingly, despite decisively outspending trial lawyers around the country, business groups were dealt a series of defeats, reversing a string of victories established in the 2002 and 2004 election cycles. The American Taxpayers Alliance, which has received funding in the past from the U.S. Chamber of Commerce, had backed Nabers, the ousted Chief Justice, in Alabama. The American Justice Partnership made donations to elect high court judges in Georgia and Oregon, and an appellate court judge in Illinois, and went 0 for 3 in those states. In Washington, national and state business groups failed to elect any of their preferred candidates despite million-dollar campaigns to defeat incumbents. Only in Ohio did business-backed candidates win election; that state's high court now has a 9-0 Republican composition. Data gathered by the Brennan Center for Justice indicated that, through October 22, 95 percent of third-party spending on television ads in high court races was paid for by business groups.
Silver Linings
Despite a last minute advertising campaign by a 527 group backed by trial attorneys and major Democratic Party donors, North Carolina's system of public financing of appellate court campaigns proved that court campaigns can remain civil and that candidates can run solid statewide campaigns without huge injections of money from national special interests. Five of six winners at the appellate level used the public financing option. North Carolina's public financing system also received a boost from an October ruling from a federal judge dismissing election-year challenges from critics, saying: "In sum, plaintiffs have not shown a likelihood of success on the merits of any of their claims challenging [particular provisions] and North Carolina's public financing scheme as a whole."
The fear of an "extreme makeover" of the Kentucky judiciary did not come to pass, even though all but a handful of the state's judges appeared on the 2006 ballot. Though candidates for the Kentucky Supreme Court helped the state set a new fundraising record, in-state observers remarked on how civil most of the judicial races remained. Efforts by the Judicial Campaign Conduct Committee, chaired by Lexington attorney Spencer Noe, were critical to the election's civility. Kentucky voters were also able to get useful nonpartisan information about judicial candidates from nonpartisan websites like KYJudges.com (a project of Justice at Stake and Common Cause Kentucky) and a "wiki" website established by a political science class at the University of Kentucky.
Pressure-Filled Questionnaires
Challenges to the professional codes of conduct that shield judges and judicial candidates from special interest intimidation continued to be a hot topic in the 2006 judicial elections. However, efforts by interest groups to demand "positions" on political issues did not meet with universal success. A questionnaire mailed to circuit court contenders in Florida was discarded by a majority of the candidates; only 15 percent responded to the group's question about a recent state Supreme Court decision on school choice. The same questionnaire demanded to know how many children each candidate had. Across the country, many of the candidates who ran on extreme "First Amendment" platforms, such as William O'Neill of Ohio, Tom Parker of Alabama, Rusty Duke of North Carolina, Wendell Griffin of Arkansas, and Rick Johnson of Kentucky, were rejected by voters.
Justice at Stake will be collaborating with many of its partners, including the Brennan Center for Justice and the Institute on Money in State Politics, on a fourth edition of its trademark "New Politics of Judicial Elections" report. The report will document and analyze campaign fundraising data, television advertising statistics, and the role of special interests in the 2006 judicial election cycle. To sign up to receive a copy of the report when it is published in the first quarter of 2007, send an email to info@justiceatstake.org
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