More Money, More Problems

Fleeting victories for diversity on the bench

Fleeting Victories For Diversity On The Bench

Though it has been 50 years since the Voting Rights Act of 1965 was signed into law, communities of color are still in need of stronger voting right protections from state judges. In fact, just a few weeks ago the Alabama Law Enforcement Agency announced it was going to close 31 DMV offices, a move that will disproportionately hinder African American voters’ ability to vote. After much criticism, the state agreed to keep the offices open for only one day each month, an action that will do little to provide access to state-mandated voter IDs.

Actions like these underscore the need for courts that represent the population and can protect against infringements of rights. However, as a new report from the Center for American Progress indicates, many communities are served by judges who are not representative of their constituents, with a disproportionate number of benches being filled by white men. In fact, all of Alabama’s 19 appellate judges are white, despite people of color comprising 30 percent of the population.

One of the significant drivers of this lack of diversity is judicial elections, which occur in many states and decide who fills many of the 340 state Supreme Court seats. And it appears that increased campaign spending in judicial elections has a negative impact on efforts to foster diversity on state supreme courts. In judicial elections, white judges are 10 percentage points more likely to get reelected than black judges and more than 23 percentage points more likely than Latino judges. Over time, this phenomenon can lead to a lack of diversity on the bench. Though this pattern may not be a surprise to many, it is a still a critical problem, especially for communities of color. Even if diverse judges are appointed to the bench, this diversity is fleeting due to the electoral advantage for white judges. And since issues of inclusion often come before the state supreme courts, which determine the scope of important constitutional rights such as the right to vote and the right to an adequate education, state judicial benches need to be representative of their communities in order to protect rights for all.

While this CAP study does not seek to determine why diverse justices have lower re-election rates than white justices, it appears from case studies of judicial elections in which judges of color lose their seats that the influx of money in judicial elections has a negative impact on the reelection rates for judges of color. And in Alabama, the only two black supreme court justices lost their seats after increased campaign spending in the 2000 election. Alabama isn’t the only state that struggles with judicial diversity; in fact, since 1804, there have only been 3 judges of color on the Ohio supreme court.

Clearly, there need to be reforms to combat the effects of judicial elections on judicial diversity. Advocates should work to get campaign money out of judicial elections and instead push for reforms, such as public financing, that lower the barrier to democratic participation for judicial candidates of color. For example, some cities have used small-donor matching public financing systems that amplify the impact of small donations; these systems often lead to more diverse candidates. Partisan judicial elections create higher barriers to the bench for judges of color, so advocates should work to limit the partisanship of elections. Barriers to voting, such as voter ID laws like in Alabama, have a disproportionate impact on voters and judges of color. In fact, all 9 states that used to be protected by the Voting Rights Act have failing or near-failing grades for voter access in CAP’s Health of State Democracies, indicating significant barriers for both voters and judges.

BOTTOM LINE: Judicial diversity is incredibly important for voters, especially for communities of color. But factors such as increased campaign spending in judicial elections has made it so judges of color are less likely to be re-elected, leading to judicial benches that do not represent their communities. Reforms that address issues such as campaign spending and voting barriers are needed to increase judicial diversity and protect the rights of all.

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