I haven't thought a whole lot about judicial elections since I quit the political consulting business in 2004.
That's partly because these down-ballot races just aren't exciting. Out of sight, out of mind. But mostly, it's because judicial campaigns were, in the end, the most frustrating and disappointing aspect of my work, part of what made it easier to jump back over the fence into journalism.
But last week, a Palm Beach Post editorial on the subject piqued my interest again. The Post, arguably in a dead heat with the St. Petersburg Times as Florida's most liberal newspaper, called for judgeships to be changed to appointed positions, taking the voters out of the equation.
The issue of appointed vs. elected judges is not a new one. Judicial campaigns are practically designed to give voters very little information, because the rules governing what candidates can and cannot say are extremely strict. Criticism of opponents is sharply curtailed and scrutinized. Candidates can't say how they feel about an issue that may conceivably come before them some day. A judicial candidate's speech is pretty much name, rank and serial number.
The Post editorial raised a new concern about judicial elections: The lack of interest on the part of the public in the voting booth, as shown by the undervote.
Undervoting was made famous in 2000 in Palm Beach County, when Al Gore lost out on votes that could have made him president. An undervote occurs when someone doesn't vote in every race on his or her ballot (or when a machine doesn't properly count their votes). It's the difference between the number of voters who participate in an election and the number of total votes cast for the candidates in any given race. Again this year, undervoting is making national headlines. In Sarasota, a 15-percent undervote in the infamous Christine Jennings-Vern Buchanan congressional race has spawned lawsuits and national debate about the veracity of the voting system.
That's paltry compared with undervoting in judicial races. In Palm Beach County, the Post said, the undervote ranged from 15 percent to 25 percent. It's just as bad in Tampa Bay. In Hillsborough's judicial circuit, 21 percent of Nov. 7's voters did not cast a ballot for either Emily Peacock or Samantha Ward. That is the same undervote as in the race for the Soil and Water District Board, the difference being that Soil and Water winner C. Dennis Carlton can't put you in jail or take away your kids.
In the Pinellas-Pasco circuit, the figures were worse. In two judicial elections, nearly one in four voters didn't cast a ballot for a judge.
My most heartbreaking losses came in judicials, where I saw lawyers with longer resumes, more years practicing law and better civic experience go down to defeat to vastly less-qualified opponents.
Still, for those many years, I did not favor appointing our circuit and county court judges. I had seen the guts of the appointment process, with its back-room politics. You had to be in the right party (Republican) and, often, in a big, well-connected law firm. So I stuck to my guns for electing judges.
It is clear that the public cannot be expected to learn enough about judicial candidates to make an informed choice and has relatively little interest in doing so. The races draw no TV coverage and precious little daily newspaper analysis. The only way judicial candidates can let the voters know about themselves is to either 1) finance their own campaigns to the tune of more than $125,000 (meaning that only the wealthy need apply) or 2) raise tons of money, almost all of it from lawyers who will later appear in front of them in court (raising the appearance of favoritism).
There are still good arguments for elections (and I heard about them on our own blog, Blurbex.com), but I'd like to see an appointment process, removed from the governor's office to an evenly split bipartisan panel that evaluates three to six nominees sent to them by a likewise evenly split bipartisan judicial nominating committee in each circuit.
Then, make those appointees run for retention and force them to get a majority of total votes cast — not just a majority of those who don't undervote.