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Judging Judicial Elections

By Juliette N. Kayyem

EVERYONE agrees that judges should not be above the law. So shouldn't the elections that choose judges be held to the same standards of fairness as other elections? A federal district court thinks not.

Last year, the League of United Latin American Citizens, a Hispanic lobbying organization, sued the state of Texas, charging that countywide elections for district judges diluted minority votes and thus reduced minority representation in the judiciary. Last month, the Fifth Circuit Court dismissed the suit, reasoning that that judges are not "public servants," and therefore their elections need not adhere to Section Two of the 1982 Voting Rights Act.

THE 1982 Act follows in the tradition of the original 1965 Voting Rights Act. Congress, hoping to solidify the voting rights guaranteed in the Fifteenth Amendment, passed the first act "to rid the country of racial discrimination in voting." Over the past 30 years, Congress and the courts have outlawed poll fees, literacy tests and intelligence examinations.

Section Two of the 1982 Act was intended to establish criteria by which unfair elections could be identified. Democrats wanted a law that would allow minorities to contest elections based soley on the final vote tally. For example, if a district of 90 percent Black voters elected only white candidates, the outcome would be immediately suspect. Republicans sought a more difficult standard of proof, whereby complaintants, in order to contest an election, would have to show that minorities were somehow prevented from voting.

The compromise that finally cleared Congress stated that the results in an election can be one factor among a "totality of circumstances" that indicate an unfair election. Section Two creates a standard to discover laws that undermine the integrity of the vote.

It is, after all, difficult to identify laws that undermine fair voting procedures. A law prohibiting Hispanics from voting is clearly unconstitutional, but more subtle deterrents to the exercise of voting rights are not so easily discerned.

What about an electoral system that produces consistent underrepresentation of minority office-holders? If whites are in an overall majority in a district which contains a large number of minority-dominated sub-districts, is there anything wrong with their electing all whites? That's majority rule, right?

Well, sort of. For some reason, the framers of our Constitution, too, believed that representatives should be elected by state so that people in Virginia could not vote for the representatives in New Jersey. Call it federalism. Call it a way of preserving the voice and autonomy of small communities.

THE purpose of the voting rights acts has little to do with outcomes. It has a lot to do with process. The act does not care whether voters are silly enough to elect Newt Gingrich or Marion Barry. It does not care whether we choose a Republican president and a Democratic Congress. It does insist, however, that the process be fair and democratic.

So the federal court's argument that claims of discrimination are simply irrelevant focuses only on the outcome. What the court says, basically, is that judges must stand above the democratic fray, and thus fairness is not an accurate standard for their elections. Because judges are not political, judicial elections need not adhere to federal standards.

The federal court did not claim that the Hispanic Committee's cries of discrimination were false. It simply said that they are not important. Who knows whether the Texan form of election is discriminatory? The point is, the federal court couldn't care less.

The court should have focused on how the vote was undertaken, not on what the vote was deciding. Somehow the federal court believed that Congress explicitly shielded judicial elections from the voting act's standards. It's difficult to know where that notion came from, since Section Two demands fairness in the "political process" and "representatives of their choice"--terms that presumably apply to all democratic elections.

The U.S. Supreme Court ruled unanimously on Monday that Georgia's judicial election system is subject to federal review in accordance with another section of the Voting Rights Act. Because the Texas ruling will be appealed, the Supreme Court will have to rule on whether Section Two also applies to judicial elections.

Voting rights should apply to all elections, whether they are selecting presidents or dog catchers. Whether judges should be elected is a different issue, but given that there are judicial elections, judges are part of that political process and should be chosen by a scrupulously fair system.

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