Election Eve Reflections on the Judiciary and the Importance of Down Ballot Voting

Judicial races at the bottom of the ballot may carry more weight than more prominent contests at the top

By R. T. Andrews

How might the quality of local government be affected if instead of seeing the high profile offices such as President, Senator, and Governor first, followed by other executive and legislative offices, the ballot order was inverted so that the first candidates we voted for were judges?

A strong argument could be made that such a reversal could improve our whole system of government. Our top elected executive and legislative officials tend to come and go — or at least switch offices, thanks in part to term limits — but judges seem more likely to become entrenched. 

One reason for the longer tenure is that judges have longer terms. State and municipal judges are elected to six-year terms, whereas most other officials have two- or four-year terms. Because their real work is often done in chambers and courtrooms that receive less scrutiny than more contentious open meetings and processes, their decisions typically evoke less public ire. Judicial anonymity is further enabled by the wearing of robes, the rituals of solemnity that permeate courtrooms, and the use of a specialized language — stare decisis, interlocutors, mens rea — that challenges even the most attentive electorate and bores or bewilders the hell out of the rest of us.

But judges play a fundamental role in our society, far deeper than we are often prone to acknowledge. As far back as high school, I remember reading about the so-called Civil Rights Cases of 1883. That was a collection of cases decided as one by the US Supreme Court which interpreted the 13^th, 14^th and 15^th Amendments to the Constitution and the Civil Rights Act of 1875 so perversely as to lay the groundwork for Jim Crow laws across the country for the next seventy-five years.

Of course, those were federal jurists, meaning they held lifetime appointments, but even my juvenile mind came away with an early understanding of how judges had extraordinary power to thwart progress and justice. 

Subsequent lessons in history revealed how courageous judges — both elected and appointed — could also advance the cause of freedom and justice. Even here in Cleveland, US District Court Judge Frank J. Battisti endured a decided ostracism from the legal and political establishment for daring to protect the civil rights of poor black public school children whom that establishment had consigned to the margins.

The essential point here is to underscore the enormous power of the judiciary in the American system of government. In the state court system, where judges are more typically elected, that power is often encountered by ordinary citizens less on a philosophy of government scale than on personal dimensions: divorce court, juvenile court, criminal court, personal injury litigation, consumer law, etc.

Yet so many of us gloss over the merits of individual candidates in favor of either a familiar name or the partisan sample straight tickets distributed to voters by local parties. 

Black voters need to be especially wary of offering indiscriminate support to judicial candidates, many of whom turn around and sentence members of their community to disproportionately longer sentences in criminal matters.

This was brought to light recently in a dustup that occurred this past week outside the Board of Elections.  Democratic Party partisans professed outrage when supporters of Judge Ray Headen, a Republican appointed to the Court of Appeals in 2018 by Gov. DeWine, seized a box or more of Democratic Party sample ballots, crossed out the names of Headen’s opponent, and stapled the judge’s campaign literature onto the modified campaign literature. It struck us an effective way to remind voters to look beyond party labels and to focus on what’s important in judicial races.

Headen sits on the local Court of Appeals where his cerebral style, academic background, and general temperament serve the public well. He is an anomaly as a black male judge in Cuyahoga County, and doubly endangered as a Republican. He has also become a leader, in these days of racial recalibration, in calling for truth-in-sentencing by judges in felony criminal cases.

A number of so-called “hanging” judges go to work every day in Cuyahoga County and around the state dispensing disproportionate sentences to people of color in criminal cases. Their work is shrouded by a systemic reluctance to gather and report data that would address both perception and reality insofar as disparate criminal sentencing and our criminal judicial system as a whole. 

The 1999 report by the Ohio Commission on Racial Fairness, a joint commission of the Ohio Supreme Court and the Ohio State Bar Association, called for “Statistical data as to race be maintained in connection with sentences, including community based sentences, in all criminal cases, including misdemeanor, juvenile and traffic cases.”

The time is ripe for this recommendation and others to be addressed and implemented by Ohio’s legal and judicial communities. Judicial candidates should be evaluated for their stance on issues like these as well as on other more traditional measures.

We understand why many thoughtful voters, especially African Americans, have decided that a straight party vote is the only prudent way to vote given the menace we presently face. However, it is important always to remember that skim milk can masquerade as cream.

Black Americans in particular can not afford to take any elections off, nor can we fail to move all the way through the ballot, examining and acting in every race. 

As the Civil Rights Cases informed us almost 150 years ago, and as the bulldozed nomination of newly-minted Justice Amy Coney Barrett reminded us last week, our interests and our freedoms are always on the scaffold known as the ballot in this Republic we call The United States of America. We forget that at our peril.

• • •• • •