Judicial-Reform Ideas Should Be Considered After Election Season

The Columbus Dispatch

Editorial: Hold that thought
Judicial-reform ideas should be considered after election season
Friday, September 17, 2010 02:52 AM

The Columbus Dispatch

Given recent rulings by a federal appeals court and the Ohio Supreme Court that give judicial candidates more latitude to declare their party affiliation and ask for campaign contributions, a re-examination of the state's judicial-campaign system is in order.

But it should take place after the coming election, which features a campaign fight for chief justice of the state's highest court.

At a recent lawyers' luncheon, Supreme Court Justice Maureen O'Connor, a Republican running for the chief justice post, advocated some reforms of the canons that govern the conduct of those running for judicial office. Some of those rules are affected by the July decision by the 6 {+t}{+h} U.S. Circuit Court of Appeals, which struck down campaign rules in Kentucky that bar judicial candidates from mentioning their political-party affiliations and soliciting campaign contributions.

While 6 {+t}{+h} Circuit Judge Jeffrey S. Sutton wrote that forbidding candidates to name their political party "violates the First Amendment on its face," O'Connor told lawyers at the luncheon that partisan labels should be more thoroughly scrubbed in Ohio by scrapping partisan primaries for judges.

Ohio's current system is, to use O'Connor's word, peculiar, in that judicial candidates run in partisan primaries but then are required to drop their party label for the general election. Ohio is the only state to do this.

Her suggestion seems opposite to that of Sutton, who wrote, "While political identification may be an unhelpful way to pick judges, it assuredly beats other grounds, such as the all-too-familiar formula of running judges with familiar or popular last names."

The circuit court ruling also addressed fundraising in judicial campaigns, declaring that Kentucky's ban on candidates asking for money suppresses their free-speech rights and, moreover, unfairly favors incumbents, wealthy and well-connected candidates.

Anticipating a similar challenge to Ohio's rules, the Ohio Supreme Court in August changed them to say that judicial candidates can declare their party affiliation in general elections and to create two exceptions to the ban on these candidates personally soliciting contributions. Candidates can make a general pitch for contributions to audiences of 20 or more and can sign letters asking for donations.

O'Connor's proposals go beyond the partisan-label question with four additional suggestions:

• Creating nonpartisan judicial-appointment panels to vet candidates for open judicial seats.
• Giving the Ohio Senate power to approve or reject the governor's nominees for open seats on the Supreme Court.
• Increasing training and qualification requirements for judges and Supreme Court justices.
• In campaign-finance reporting, requiring judges to list not only who gave them money but also who turned down their requests.

Giving the state Senate advise-and-consent powers similar to the federal model is a provocative proposal that would markedly constrain the power of the governor's office. While it could be seen as a check-and-balance mechanism, the bitter partisanship that has gridlocked federal judicial appointments offers a cautionary note.

The 6 {+t}{+h} Circuit decision and the reactions to it are likely to reopen another debate: whether Ohio should appoint judges and jus-
tices rather than elect them.

All of these questions deserve Ohioans' attention - as soon as the election-year noise has died down.

2010 Swing State Report

Common Cause and Demos have analyzed election policies in 10 swing states that could disenfranchise voters and impact election results. The report looks at Arizona, Colorado, Illinois, Kentucky, Louisiana, Michigan, Missouri, Nevada, North Carolina, and Ohio, summarizing each state’s practices, and providing a set of recommendations for improvement. Dozens of impediments to voting and voter registration were uncovered in this examination of election laws and practices – along with some positive news for voters. These 10 states are expected to be pivotal in this fall’s battle for control of Congress and were chosen because, historically, closely-contested elections often feature attempts to suppress voter registration and turnout, some of them abetted by archaic state laws and election practices

To read the full report click here

 Click here for more information on this topic including the Common Cause and Demos Press Release and Executive Summary