Indiana Law Review Volume 49 2016 Number 2 NOTES JUDICIAL SLATING IN MARION COUNTY, INDIANA: DEFENDING ITS CONSTITUTIONALITY WHILE ADVOCATING REFORM CALE ADDISON BRADFORD * INTRODUCTION Critics of Marion County’s judicial selection process should blame Richard Nixon. Although Nixon was never directly involved in structuring Indiana’s judiciary, the aftermath of the Watergate scandal created the political environment that led the Indiana General Assembly to enact a unique judicial selection process in Marion County. In the 1974 elections, continued displeasure1 with the Republican Party stemming from Watergate led Marion County voters2 to elect Democratic candidates to all seven seats on the Marion Superior Court,3 which included the defeat of three Republican incumbents. Other Democratic4 candidates also defeated their Republican challengers for six other spots on other courts within the county. The reforms that followed these elections shaped the5 judicial selection process that the county used for the next forty years later.6 Although courts around the country use a variety of judicial selection measures, Marion County’s system is unique. Marion County voters elect judges7 * J.D. Candidate, 2016, Indiana University Robert H. McKinney School of Law; Bachelor of Arts, 2013, Purdue University. I want to thank Professor and former Indiana Supreme Court Justice Frank Sullivan for his guidance during the Note development process and for his continued investment in my legal education. A special thank you to my family as well, whose care and patience is a model of biblical grace. 1. Dave Stafford, Marion County Slating Reform Gets New Push, IND. LAW. (Aug. 29, 2012), http://www.theindianalawyer.com/marion-county-slating-reform-gets-new-push/PARAMS/ article/29543 [http://perma.cc/ANV8-T938]. 2. Marion County is the largest county in Indiana and is home to the state’s capital, Indianapolis. See About Indy, CITY INDIANAPOLIS & MARION CTY., http://www.indy.gov/pages/ aboutindy.aspx [http://perma.cc/5KBN-8SXC] (last visited Jan. 1, 2015). 3. Jeff Devins, Demo ‘New Broom’ Sweeps GOP Off County Benches, INDIANAPOLIS STAR, Nov. 6, 1974, at 13. 4. Id. 5. Id. 6. See generally 1975 Ind. Acts 1715. 7. Dave Stafford, Judge: Suit Challenging Marion County Judicial Slating May Proceed, http://dx.doi.org/10.18060/4806.0073 506 INDIANA LAW REVIEW [Vol. 49:505 through partisan elections, but the Indiana Code limits the number of candidates a political party may nominate for the general election to half the positions on the court. The county’s Democratic and Republican parties also use a system called8 “slating” in which party leaders endorse certain candidates for the primary election. Lawyers and other members of the community criticize the9 combination of these two processes and contend that it prevents many voters from meaningfully participating in judicial selection in Marion County.10 This Note assesses the constitutionality of this process and advocates reforming this system to promote a more accountable and independent judiciary. Part I of this Note summarizes the history of judicial selection for the Marion Superior Court and the court’s current structure. It includes results from past elections, which demonstrate that judicial candidates supported by party leaders are substantially more likely to be elected to the court. Part II analyzes and critiques the Seventh Circuit’s holding that Marion County’s system is unconstitutional. This Note argues that although this process may be poor policy, recent United States Supreme Court precedent suggests this system is constitutional. Part III proposes enacting merit selection at the trial level, similar to the processes used in Lake and St. Joseph County, Indiana. Part III also recommends implementing judicial performance evaluations to make retention elections more meaningful and uses Colorado as a framework for creating these systems at the trial level. I. JUDICIAL SELECTION IN MARION COUNTY Marion County’s judicial selection process is the product of the unique political climate that resulted from the 1974 elections. Following the elections, both Republicans and Democrats seemingly recognized that the changing political attitudes of a given election cycle could lead to each party’s complete exclusion from the Marion Superior Court, which would be highly undesirable to both parties. Reacting to this political climate, the Indiana General Assembly11 IND. LAW. (Sept. 13, 2013), http://www.theindianalawyer.com/judge-suit-challenging-marion- county-judicial-slating-may-proceed/PARAMS/article/32374 [http://perma.cc/H48-5W7R]. 8. IND. CODE § 33-33-49-6 (2014). 9. Marisa Kwiatkowski, Money, Politics, and Judges: Do Judicial Candidates Pay to Play?, INDIANAPOLIS STAR (Mar. 15, 2014, 11:05 PM), http://www.indystar.com/story/news/2014/03/ 15/money-politics-and-judges-do-judicial-candidates-pay-to-play/6470879/ [http://perma.cc/H58M- Q3Y2]. 10. Complaint for Declaratory and Injunctive Relief/Notice of Challenge to the Constitutionality of State Statute at 5, Common Cause Ind. v. Ind. Sec’y. of State, 60 F. Supp. 3d 982 (S.D. Ind. 2014) (No. 1:12–cv–01603–RLY–DML), aff’d No. 14-3300, 2015 WL 5234614 (7th Cir. 2015) [hereinafter Plaintiffs’ Complaint]. 11. See 1975 Ind. Acts 1715; see also IND. SEC’Y OF STATE, ELECTION REPORT STATE OF INDIANA 55 (1978) [hereinafter 1978 ELECTION REPORT]. If the legislature failed to reform this selection process before the next election four years later, one-party electoral dominance likely would have continued. Six of the seven candidates receiving the most votes in 1978 were 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 507 in 1975 passed legislation reforming judicial selection within the county.12 The legislature capped the number of judicial candidates each political party could nominate to prohibit a single party from winning every position. The13 statute specified that a political party could nominate seven candidates for the thirteen positions available on the court. Although the language initially did not14 include express limiting language, the legislature amended the statute in 1977 to specify that one party could “nominate not more than seven (7) candidates.”15 Later amendments to the statute gradually expanded the number of judges on the court from thirteen to thirty-six. The most significant of these amendments16 occurred in 2006 when the legislature created an even number of judges on the court and changed the process so that each major party could elect candidates for half the positions. Previously, voters elected an odd number of judges. As a17 18 result, each major party nominated candidates for exactly one more than half the positions—with the consequence that one judicial candidate nominated by the two major parties would lose in the general election. 19 Since these reforms, each judge elected to the Marion Superior Court has been either a Democrat or Republican. Although candidates unaffiliated with20 the Democratic or Republican parties have run in the 2000 and 2002 elections, none of these unaffiliated candidates ultimately won. In 2000, the candidate21 Republicans. Id. 12. 1975 Ind. Acts 1715. 13. Id. 14. Id. The Marion Superior Court previously consisted of only seven judges. The 1975 revisions included expanding the number of judges on the Marion Superior Court from seven to thirteen. Id. 15. 1977 Ind. Acts 1458 (emphasis added). 16. IND. CODE § 33-33-49-6 (2014). Although the Marion Superior Court has thirty-six judges, voters do no elect every judge during the same election cycle. Voters elect twenty of the judges every six years starting from 2006 and elect the sixteen other judges every six years starting from 2008. Id. § 33-33-49-13. 17. 2006 Ind. Acts 1641. 18. See 1978 ELECTION REPORT, supra note 11, at 55. 19. See id. For example, in 1978, each party could nominate seven judges even though there were only thirteen positions. Voters elected all seven Republican candidates that year and elected only six of the seven Democratic candidates. Id. 20. See id.; IND. SEC’Y OF STATE, ELECTION REPORT STATE OF INDIANA 74 (1984) [hereinafter 1984 ELECTION REPORT]; IND. SEC’Y OF STATE , ELECTION REPORT STATE OF INDIANA 57 (1990) [hereinafter 1990 ELECTION REPORT]; IND. SEC’Y OF STATE, ELECTION REPORT OF THE STATE OF INDIANA 57 (1996) [hereinafter 1996 ELECTION REPORT]; IND. ELECTION DIV., IND. SEC’Y OF STATE, STATE OF INDIANA 2000 ELECTION REPORT 77 (2000) [hereinafter 2000 ELECTION REPORT]; Election Results, IND. SEC’Y OF STATE ELECTION DIV., http://www.in.gov/sos/elections/ 2400.htm [http://perma.cc/WW7G-R45K] (last visited Nov. 7, 2014) [hereinafter Election Results]. Cited print election reports are available at the Indianapolis Public Library at its central location and the Indiana State Library. 21. 2000 ELECTION REPORT, supra note 20, at 77; Election Results, supra note 20. In 2000, 508 INDIANA LAW REVIEW [Vol. 49:505 with the most votes among those unaffiliated with either of the main parties received over 60,000 fewer votes than the Democratic or Republican candidate with the least amount of votes. The margin was wider in 2002, as over 75,00022 votes separated the only Libertarian candidate in the race from the major party candidates. Because candidates unaffiliated with the Democratic and23 Republican parties have struggled to challenge these party-affiliated candidates, succeeding in the Democratic and Republican primary elections largely secures victory in the general election.24 The slating process heavily influences these elections. Both the Democratic25 and Republican parties in Marion County use slating to endorse candidates.26 During slating, party ward chairmen, ward vice chairmen, and precinct committee members vote on which candidates should be slated, or endorsed, for their primary election. However, slated candidates do not automatically appear as the27 party’s candidate in the general election. They must compete against any28 additional candidates in the primary, as unslated candidates may participate in the primary. However, out of the twelve unslated candidates who participated29 30 in these primaries since 2002, only two defeated slated candidates. Eleven31 32 other candidates challenged the party slate in a primary from 1978 to 1996.33 six candidates unaffiliated with the two major parties participated in the general election. 2000 ELECTION REPORT, supra note 20, at 77. 22. 2000 ELECTION REPORT, supra note 20, at 77. Libertarian candidate Jamie Sue Goldstein received 31,760 votes in 2000 and the candidate from the two major political parties receiving the least amount of votes still received 96,093 votes. Id. 23. Election Results, supra note 20. For the purposes of this Note, “major party” only includes the Democratic and Republican parties. 24. Stafford, supra note 7. 25. See Mulholland v. Marion Cty. Election Bd., 746 F.3d 811, 813 (7th Cir. 2014) (“The two major political parties in Marion County, Indiana, both follow a long tradition of ‘slating’ their preferred candidates in primary elections.”). 26. Kwiatkowski, supra note 9. 27. Id. Voters elect precinct committeemen, who constitute a large majority of the voting bloc during slating elections. IND. CODE § 3-10-1-4.5 (2014). 28. Kwiatkowski, supra note 9. 29. See IND. CODE § 3-8-1-5.5 (2014). The statute only restricts candidates’ access to the general election ballot if they fail to win their party’s endorsement during slating. Id. 30. Since 2002, ninety-eight total candidates participated in the primaries, which means that approximately twelve percent of the candidates were unslated. Election Results, supra note 20. 31. 2000 ELECTION REPORT, supra note 20, at 77; Election Results, supra note 20. Three unslated candidates participated in the Republican primaries since 2002, while eight unslated candidates participated in the Democratic primaries. Id. 32. Kwiatkowski, supra note 9. Neither party responded to requests to obtain slating records from before 2000. This data is not otherwise available as a party’s endorsement does not appear on the ballot. Therefore, to calculate the number of unslated candidates in these primaries, the author added together the number of additional candidates in each primary. 33. 1978 ELECTION REPORT, supra note 11, at 55; 1984 ELECTION REPORT, supra note 20, 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 509 Although slating is largely associated with political parties, there is no statute in Indiana that prohibits other political or special interest organizations from slating candidates to increase their electoral chances.34 Although unslated candidates may challenge the party’s slate in the primary election, failing to win this primary ends their candidacy. Indiana’s “sore loser”35 law prohibits candidates who unsuccessfully participate in a party’s nominating process or primary election from running in the general election. Therefore, a36 candidate must balance the risks of seeking the party’s endorsement with choosing to forgo the nomination and primary process in favor of running as an independent or third-party candidate in the general election. Money plays a significant role in this slating process. The parties ask37 candidates seeking their endorsement for the primary to contribute between $12,000 and $14,000. In recent elections, candidates generally contributed more38 than this minimum, as each of the Democratic candidates slated in 2012 raised over $14,000. Most candidates slated in the Republican primary raised over39 $20,000 during that year. The parties spend most of these funds on each of their40 “legitimate election costs.” Despite the party’s fundraising request, these41 campaign donations must be voluntary because state law prohibits a political party from requiring a candidate to pay slating fees. However, failing to42 contribute this money appears to diminish one’s chances of being slated, as it is unlikely that the party leadership making these slating decisions looks favorably on candidates who refuse to raise support.43 The lack of competition in these elections, the inability of unslated candidates to win primary elections, and the money that candidates must “voluntarily” contribute garners significant criticism. A 2009 poll from the44 Indianapolis Bar Association found that 83.9 percent of its members preferred at 74; 1990 ELECTION REPORT, supra note 20, at 57; 1996 ELECTION REPORT, supra note 20, at 57. 34. The codified definition of “slate” in the Indiana Code omits language limiting organizations other than political parties from nominating candidates. See IND. CODE § 3-14-1-2(b) (2014) (declared unconstitutional in Mulholland v. Marion Cty. Election Bd., 746 F.3d 811 (2014)). 35. IND. CODE § 3-8-1-5.5 (2014). 36. Id. 37. Kwiatkowski, supra note 9. 38. Id. 39. Id. 40. Id. 41. These costs include mailers about judicial and non-judicial candidates. Id. 42. Id. 43. It also dissuades candidates from seeking a party’s nomination. Tony Cook, Unslated Candidate for Judge Seeks Review of Democrats’ Mailing, INDIANAPOLIS STAR (May 3, 2014, 9:52 PM), http://www.indystar.com/story/news/politics/2014/05/03/unslated-candidate-judge-seeks- review-democrats-mailing/8665581/ [http://perma.cc/FXE4-9ZP8]. 44. Stafford, supra note 1. 510 INDIANA LAW REVIEW [Vol. 49:505 nonpartisan merit selection over the current system. Some of these critics assert45 that the process essentially allows local party leaders to select judges in Marion County by creating a pay-to-play system. They contend that most voters do not46 have the opportunity to participate meaningfully in judicial selection in Marion County because the election is already decided before they submit their votes.47 As mentioned previously, the vast majority of slated candidates ultimately become judges in Marion County. Others point out that the system also deprives48 Republicans and Democrats of an opportunity to elect more candidates to the court. Although these parties may have contested primaries, partisan voters may49 not meaningfully participate in the general election because they cannot vote for their party’s chosen candidate for all the positions. Citing these concerns, the50 American Civil Liberties Union and Common Cause Indiana filed a lawsuit on November 10, 2012 in the United States District Court for the Southern District of Indiana challenging the constitutionality of this system. Both parties later51 filed motions for summary judgment, leading to the district’s court decision on October 9, 2014. 52 II. A CONSTITUTIONAL, YET FLAW ED SYSTEM A. Rejecting the Status Quo Despite the apparent widespread criticism of Marion County’s judicial selection process, it took forty years for a court finally to intervene. On53 October 9, 2014, Judge Richard Young reignited the judicial selection conversation in Marion County by holding the county’s unique system unconstitutional because of the burden it created on Marion County voters’ right to vote. Although the State appealed the decision, criticizing several aspects of54 45. Id. 46. Kwiatkowski, supra note 9. 47. Plaintiffs’ Complaint, supra note 10, at 5. 48. See 1978 ELECTION REPORT, supra note 11, at 55; 1984 ELECTION REPORT, supra note 20, at 74; 1990 ELECTION REPORT , supra note 20, at 57; 1996 ELECTION REPORT, supra note 20, at 57; 2000 ELECTION REPORT, supra note 20, at 77; Election Results, supra note 20. 49. Kwiatkowski, supra note 9. 50. Id. 51. Dave Stafford, Common Cause, ACLU Sue over Marion County Judge Slating, IND. LAW. (Nov. 2, 2012), http://www.theindianalawyer.com/common-cause-aclu-sue-over-marion-county- judge-slating/PARAMS/article/30027 [http://perma.cc/MG44-3G2N]. 52. Common Cause Ind. v. Ind. Sec’y. of State, 60 F. Supp. 3d 982 (S.D. Ind. 2014), aff’d No. 14-3300, 2015 WL 5234614 (7th Cir. 2015). 53. Id. 54. Id. at 993. Although the district court held the system was unconstitutional, it stayed the ruling until after the 2014 general election. Id. In effect, the court allowed an unconstitutional election process to proceed. The court should have held the opinion until after the elections to prevent this odd situation. 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 511 the district court’s reasoning, the Seventh Circuit affirmed the holding almost a year later. The Seventh Circuit focused on the burden that limiting the number55 of candidates each party may nominate created. To determine whether this56 burden rose to an unconstitutional level, the court weighed “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden plaintiff’s rights.”57 The Seventh Circuit held that limiting the number of candidates each party may nominate constitutes a severe burden on the First and Fourteenth Amendment right to vote. According to the court, these restrictions prevent58 many voters from having an effective voice in judicial selection within Marion County because the statute created a system that essentially does not allow for competitive elections. Although the State argued that the ballot access59 provisions did not prohibit other parties from holding primaries or petitioning to get on the ballot, the court held that the statute does not give “the full electorate the opportunity to consider and choose between the available candidates.” The60 court noted that even if an additional candidate appeared on the general election ballot, it would only meaningfully impact the election for one of the positions on the court. The vast majority of the judges on the ballot would still be elected by61 simply voting for himself or herself.62 According to the Seventh Circuit, the State’s purported interests did not outweigh this substantial burden. The State contended the selection process63 advanced legitimate state interests by encouraging impartiality and fair political representation, reducing the costs of judicial elections in the county, and “ensuring stability and public confidence in the court.” Although it did not64 reject the legitimacy of the State’s interests, the Seventh Circuit found these interests did not justify the current selection process. For example, although65 55. Common Cause Ind. v. Ind. Sec’y. of State, No. 14-3300, 2015 WL 5234614, at *4-7 (7th Cir. 2015). 56. Id. 57. Id. at *4 (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983))). 58. Id. at *7. 59. Id. 60. Id. at *5 (“[T]he Statute burdens the vote by essentially removing all competition and electoral choice before the general election.”). 61. Id. at *7. 62. Id. 63. Id. at *13. 64. Id. at *8-12. 65. Id. at *13. 512 INDIANA LAW REVIEW [Vol. 49:505 promoting impartiality and confidence in the judiciary may be a legitimate interest, the court noted that the Indiana Code of Judicial Conduct (“Judicial Code”) sufficiently protects this interest by setting the boundaries of judicial conduct, whereas the current system may actually “damage public confidence in the impartiality of the court.” Similarly, although the State may have an interest66 in discouraging “contentious and extreme partisanship,” a partisan balance statute is not the only policy option for achieving this goal, as the State could enforce the current provisions of the Judicial Conduct that address judicial campaigning. Therefore, considering the substantial burden on the right to vote67 and the lack of state interests to justify the system, the Seventh Circuit concluded the system is unconstitutional.68 B. Mistaking Opportunity and Results Marion County’s judicial selection process may give elected party leaders a more influential role in selecting judges, but any burden on the right to vote caused by this process does not rise to an unconstitutional level. Although most elections for the Marion Superior Court are uncompetitive, the Seventh Circuit mischaracterized the opportunity voters have in Marion County to have an effective voice in judicial selection. It erroneously mistook opportunity for69 results, which the United States Supreme Court distinguished in New York State Board of Elections v. Lopez Torres. Lopez Torres involved New York’s judicial70 selection process for its Supreme Court judges in which political parties nominate their judicial candidates for the general election through a party nominating convention. Unlike Indiana, New York does not use primaries, so71 individuals endorsed by the party during these nominating conventions appear on the general election ballot. One political party dominates many districts in72 New York, so whichever candidate the party leaders choose at the conventions often determines the result of the election. Like judicial elections in Marion73 County after 1974, by the time voters go to the ballot box, the elections in many New York districts are already decided as a practical matter. 74 Despite the lack of competition in many districts, the Court upheld the system as constitutional. Although New York’s system inevitably allowed party75 leaders to choose judges, the Court held that “[p]arty conventions, with their 66. Id. at *11. 67. Id. at *11-12. 68. Id. at *13. 69. See generally N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008). 70. Id. The Seventh Circuit distinguished Lopez Torres in its opinion. Common Cause, 2015 WL 5234614, at *6-7. 71. Lopez Torres, 552 U.S. at 200. 72. Id. at 200-01. 73. Id. at 207. 74. Id. 75. Id. at 209. 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 513 attendant ‘smoke-filled rooms’ and domination by party leaders, have long been an accepted manner of selecting party candidates.” Even though Lopez Torres76 was unlikely to receive the party’s nomination because she refused to make patronage hires, the Court held that nothing in the Constitution confers a right77 for a candidate to have a “fair shot” at a party nomination. Lopez Torres’s real78 problem was that the majority of voters preferred the party leadership’s slate.79 This system satisfied any constitutional interest in having competitive elections.80 The Court held that “as long as a candidate has an opportunity to access a ballot, the interest in competition is protected.” It refused to impose additional81 requirements to make these elections more competitive to balance one-party dominance in some districts. Although states may enact statutes that discourage82 an electoral monopoly by one party, “the Constitution provides no authority for federal courts to prescribe such a course.” According to the Court, New York’s83 system might be poor policy, but it is not unconstitutional. 84 Although Lopez Torres did not address statutory provisions limiting the number of candidates a party may nominate, two other court decisions upheld provisions similar to Marion County’s framework. In Blaikie v. Power, the New85 York Court of Appeals upheld a statute limiting each party to nominating one candidate for each New York City borough, which each have two at-large seats on the New York City Council. Similar to Common Cause, the issue for the86 Blaikie court was whether this statutory framework deprived a voter of the “right to vote for a candidate of his choice for both of the elected offices to be filled.”87 Noting similar restrictions existed since the nineteenth century, the Blaikie court held that the statute did not violate the Fourteenth Amendment. Additionally,88 in LoFrisco v. Schaffer, the United States District Court for the District of Connecticut upheld a state statute limiting the number of members from one political party that may serve on a local school board. Although, under the89 76. Id. at 206. 77. Id. at 201. 78. Id. at 205 (“What constitutes a ‘fair shot’ is a reasonable enough question for legislative judgment.”); see also Cal. Democratic Party v. Jones, 530 U.S. 567, 572 (2000) (“[T]he processes by which political parties select their nominees are not wholly public affairs that States may freely regulate.”). 79. Lopez Torres, 552 U.S. at 205. 80. Id. at 207. 81. Id. 82. Id. at 208. 83. Id. 84. Id. at 209. 85. See Blaikie v. Power, 193 N.E.2d 55 (N.Y. 1963); LoFrisco v. Schaffer, 341 F. Supp. 743 (D. Conn. 1972). 86. Blaikie, 193 N.E.2d at 56. 87. Id. 88. Id. at 58-59. 89. LoFrisco, 341 F. Supp. at 751. Voters elect members of these local school boards. CONN. 514 INDIANA LAW REVIEW [Vol. 49:505 statute, the number of seats one party may hold differs depending on the size of the school board, one party cannot hold all of the seats no matter the size. Like90 the Blaikie court, the LoFrisco court held that this statutory scheme did not violate the Constitution. However, the Seventh Circuit distinguished both of91 these cases. 92 The Seventh Circuit’s conclusion that the current system “does not contemplate a contested general election” is erroneous in light of these decisions, as Marion County’s current system provides sufficient opportunity for contested, competitive elections. The court failed to recognize the link between ballot93 access and the burden on the right to vote. Although the electoral scheme may discourage contested elections between Democrats and Republicans, the two major parties do not have a monopoly on the ballot. As the Seventh Circuit94 correctly noted, Indiana’s election laws expressly allow third-party and independent candidates to appear on the ballot. The requirements for getting on95 the ballot do not present an insurmountable hurdle. To appear on the ballot,96 independent or third-party candidates may submit a petition “signed by the97 number of voters equal to two percent (2%) of the total vote cast at the last election for secretary of state in the election district that the candidate seeks to represent.” For the 2014 elections, these candidates needed to retrieve only98 4251 signatures in Marion County. Third parties whose secretary of state99 GEN. STAT. § 9-167a (2014). 90. CONN. GEN. STAT. § 9-167a. For example, if the board has three seats, one party may only hold two of the seats. Id. If the board has four seats, one party may only hold three seats. Id. 91. LoFrisco, 341 F. Supp. at 751. However, the LoFrisco court did not address the burden on the right to vote. Id. at 745. Instead, the contested issue was the existence and effect of vote dilution. Id. 92. Common Cause Ind. v. Ind. Sec’y. of State, No. 14-3300, 2015 WL 5234614, *9 (7th Cir. 2015). The court distinguished these cases by noting that each involved efforts to protect the interests of minority parties in legislative processes. Id. A judge, on the other hand, “is not elected to represent a particular viewpoint but must exercise his or her own independent authority to make decisions that uphold and apply the law fairly and impartially.” Id. 93. Id. at *5. 94. See IND. CODE §§ 3-8-6-3, -4-10(a) (2014). 95. Id. §§ 3-8-6-3, -4-10(a). 96. Id. §§ 3-8-6-3, -4-10(a). 97. This could include candidates within the Democratic or Republican parties who choose to run in the general election because they are unlikely to receive the party’s nomination. 98. IND. CODE § 3-8-6-3. The Seventh Circuit previously held that this petition requirement is constitutional. Hall v. Simcox, 766 F.2d 1171, 1177 (7th Cir. 1985). 99. State Defendants’ Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment and in Support of the Motion for Summary Judgment at 5, Common Cause Ind. v. Ind. Sec’y. of State, 60 F. Supp. 3d 982 (S.D. Ind. 2014) (No. 1:12–cv–01603–RLY–DML), aff’d No. 14-3300, 2015 WL 5234614 (7th Cir. 2015). The United States Supreme Court upheld statutes that required candidates to collect over 20,000 signatures in Norman v. Reed, 502 U.S. 279, 295 (1992), and American Party of Texas v. White, 415 U.S. 767, 783 (1974). 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 515 candidate received between two and ten percent of the vote in the last statewide election for that office may also nominate candidates for the ballot during their party nominating convention. Although third-party candidates only ran in two100 previous elections, their absence from the ballot in more recent elections should not support the inference that they will not be able to compete in future elections. Lastly, individuals may file a declaration of intent to be a write-in candidate.101 Addressing these ballot access provisions, the Seventh Circuit reasoned that even if a third-party candidate gained access to the ballot, all but one of the spots would be contested. As a result, the court concluded the system largely102 “forecloses the opportunity for electoral choice.” However, other electoral103 situations expose problems with this reasoning. Consider an election in which voters elect sixteen Marion Superior Court judges and sixteen third-party or independent candidates meet the statutory requirements to get on the ballot. Also assume that these third-party or independent candidates enjoy at least as much support as the Democratic and Republican candidates. In this hypothetical scenario, both Republicans and Democrats would have to compete for every seat on the court. Although this scenario may be unlikely given the current dominance of Democrats and Republicans in Marion County politics, it is possible that Democrats and Republicans could be completely shut out under the current framework. Like New York voters’ preference for the party’s slate in Lopez Torres, Common Cause and ACLU’s real problem appears to be that voters simply prefer Democratic and Republican candidates over these third-party and independent candidates. The burden of the right to vote is minor because ballot access provisions in Marion County allow for meaningful, competitive elections. Even in past elections where no third-party and independent candidates challenged the major parties, voters in Marion County had a meaningful opportunity to participate in the judicial selection process by voting in primary elections. Political primaries are a “major avenue for political participation”104 100. IND. CODE § 3-8-4-10(a). The Libertarian Party in Indiana would have been eligible to nominate candidates for the 2014 elections under this provision. The Libertarian Party’s candidate for secretary of state received 100,795 out of the 1,709,734 votes cast in the 2010 election. IND. SEC’Y OF STATE, 2010 INDIANA ELECTION REPORT, available at http://www.in.gov/sos/elections/ files/2010_ELECTION_RESULTS_155618.pdf [http://perma.cc/VBG7-KXAA]. 101. See IND. CODE § 3-8-2-2.5. 102. Common Cause Ind. v. Ind. Sec’y. of State, No. 14-3300, 2015 WL 5234614, *7 (7th Cir. 2015). 103. Id. 104. See Nathaniel Persily, Candidates v. Parties: The Constitutional Constraints on Primary Ballot Access Laws, 89 GEO. L.J. 2181, 2188-89 (2001); IND. CODE § 3-10-1-6 (2014). The openness and potential competitiveness of these primaries did not change the Seventh Circuit’s constitutional analysis. Common Cause, 2015 WL 5234614, *5 n.6. The court noted that even in competitive primary elections, voters may only choose between half the candidates for the Marion Superior Court. Id. Because there often are no third-party or independent candidates in the general election, these voters do not have an effective voice in selecting the other half of the judges. Id. However, the court once again failed to recognize that there could be enough third-party or 516 INDIANA LAW REVIEW [Vol. 49:505 and “provide an outlet for democratic action on a massive scale.” In Indiana,105 primaries are open to almost all voters as Indiana’s primary access laws are far from stringent. Registered voters in Indiana may participate in a party’s106 primary if they voted for a majority of a party’s candidates in the previous general election. As third-party and independent candidates rarely appear in107 many races, it would appear that most voters will likely vote for a majority of one party’s candidates in a general election. Although this might leave a bad taste in the mouths of independent voters in Marion County who identify with neither party, the United States Supreme Court bluntly held in California Democratic Party v. Jones that “[t]he voter who feels himself disenfranchised should108 simply join the party.” 109 These primaries can be competitive. Although most slated candidates in110 Marion County succeeded in the primaries, unslated candidates contested most of these races. A total of twenty-five unslated candidates competed in these111 primaries since the current system’s adoption and only a few thousand votes decided these elections. In the 2008 Democratic primary, nine candidates ran112 for the party’s eight available spots and the candidate receiving the least amount of votes cast finished only 1266 behind the next finisher. In the 1990113 independent candidates to contest every seat on the court. 105. Persily, supra note 104, at 2188-89. 106. See IND. CODE § 3-10-1-6. 107. Id. 108. 530 U.S. 567 (2000). 109. Id. at 584 (“[This decision] may put him to a hard choice, but it is not a state-imposed restriction upon his freedom of association . . . .”). 110. See 1978 ELECTION REPORT, supra note 11, at 24; 1984 ELECTION REPORT, supra note 20, at 35; 1990 ELECTION REPORT, supra note 20, at 25; 1996 ELECTION REPORT, supra note 20, at 25-26; Election Results, supra note 20. 111. See 1978 ELECTION REPORT, supra note 11, at 24; 1984 ELECTION REPORT, supra note 20, at 35; 1990 ELECTION REPORT, supra note 20, at 25; 1996 ELECTION REPORT, supra note 20, at 25-26; Election Results, supra note 20. This number does not include election results from the 2000 primary election. However, the exclusion of these results does not change the competitiveness of previous elections. 112. 1978 ELECTION REPORT, supra note 11, at 24; 1984 ELECTION REPORT, supra note 20, at 35; 1990 ELECTION REPORT, supra note 20, at 25; 1996 ELECTION REPORT, supra note 20, at 25-26; Election Results, supra note 20. 113. Past Election Results, MARION COUNTY ELECTION BOARD, http://www.indy.gov/eGov/ County/Clerk/Election/Election_Info/Past_Results/Pages/Election%20Results%20Archive.aspx [http://perma.cc/Y4QW-HJNU] (last visited Oct. 4, 2014). The eighth-place finisher received 63,703, while the ninth-place finisher received 62,437. Id. The only unslated candidate in the 2008 Democratic primary received the second most number of votes. Id.; Joel Schumm, Ind. Courts—The Kimberly Brown Judicial Ethics Saga: Some Thoughts on Assessing Remorse and the Re-Election Process, IND. L. BLOG (Dec. 13, 2013, 3:03 PM), http://indianalawblog.com/ archives/2013/12/ind_courts_the_43.html [http://perma.cc/PZ42-Y3EX] (noting Judge Brown was not slated in 2008). 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 517 Republican primary, the difference between the candidate with the least amount of votes among those who won and the candidate with the highest amount of votes among those who lost was under 3000 votes. In 2012, the margin (30,727114 to 26,790) was approximately 4000 votes in the Republican primary. It is115 doubtful the judges participating in these elections considered these races to be uncompetitive when a few thousand votes could have changed their fate. Although only two candidates defeated the party’s slate since 2000 in these primaries, as the Court recognized in Lopez Torres, “this says nothing more116 than that the party leadership has more widespread support than a candidate not supported by the leadership.”117 However, the Court in Lopez Torres also noted that “[c]andidates who fail to obtain a major party's nomination via convention can still get on the general- election ballot for the judicial district by providing the requisite number of signatures of voters resident in the district.” Although Indiana Code section 3-118 8-1-5.5 prohibits candidates who lose in primaries or during the nominating process from running in the general election, it does not entirely bar candidates119 from the general election. Like candidates in New York, candidates have120 another way to get on the general election ballot by forgoing the nomination process and retrieving the necessary signatures to run as an independent candidate. These candidates must balance the risks of seeking the party’s121 nomination with the risks of running in the general election without the Democratic or Republican label. Marion County judicial candidates, like every other candidate in Indiana, choose their own path and by choosing to seek the party’s endorsement, they accept the risk of later exclusion from the general election. Although they might not have access later to the general election as a Democrat or Republican, they have access initially. Additionally, the State has122 an interest in preventing “sore-loser” candidates. Analyzing a similar “sore-123 loser” statute, the United States Supreme Court in Storer v. Brown held that the statute was constitutional because “[i]t protects the direct primary process by refusing to recognize independent candidates who do not make early plans to leave a party and take the alternative course to the ballot.” Allowing every124 candidate who lost in a primary to run in the general election “might sacrifice the political stability of the system.”125 114. 1990 ELECTION REPORT, supra note 20, at 25. 115. Election Results, supra note 20. 116. Kwiatkowski, supra note 9. 117. N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 205 (2008). 118. Id. at 207-08. 119. See IND. CODE § 3-8-1-5.5 (2014). 120. See id. § 3-8-6-3. 121. See id. 122. See id. 123. Burdick v. Takushi, 504 U.S. 428, 439 (1992). 124. Storer v. Brown, 415 U.S. 724, 735 (1974). 125. Id. at 736. 518 INDIANA LAW REVIEW [Vol. 49:505 Furthermore, voters elect precinct committeemen, who play a substantial role in the slating process, in these primaries. This gives voters at least some role126 in the slating process. If voters are not satisfied with the candidates party leaders choose, they may simply vote out these party leaders. This role is especially127 weighty considering the Supreme Court’s recognition in Cousins v. Wigoda that “[a]s a practical matter, the ultimate choice of the mass of voters is predetermined when the nominations have been made.” Although most voters128 have little to no knowledge of the individuals running to be precinct committeemen, and in many cases party chairman appoint precinct committeemen because no one seeks the position, the constitutionality of electoral statutes should not turn on voter ignorance. Therefore, voters have an129 effective voice in almost every phase of the judicial selection process: they may elect the party leaders for the slating convention, choose between slated and unslated candidates in the primary, and decide whether to support independent or third-party candidates in the general election. The district court and Seventh Circuit’s apparent attempt to make the “general election to mean something” is a noble goal, but not a constitutional requirement when there is not a substantial burden on the right to vote. General elections often do not mean anything in many jurisdictions, especially in those jurisdictions where one party enjoys an electoral monopoly. For example, in130 Hamilton County, Indiana, every elected partisan county official is Republican.131 In 2014, only one Democrat ran for county office in Hamilton County and county voters did not elect any Democratic candidate over the past fourteen years.132 Although the nation elected Barack Obama as president by decisive margins in 2008 and 2012, Mitt Romney carried the county by over sixty-five percent and John McCain garnered sixty percent of the county’s vote. Under the present133 political environment in Hamilton County, it appears that the winner of the Republican primary is almost assured victory in the general election. May voters who do not identify with the Republican Party meaningfully participate in these 126. See IND. CODE § 3-10-1-4.5 (2014). 127. See id. 128. Cousins v. Wigoda, 419 U.S. 477, 490 (1975) (quoting Newberry v. United States, 256 U.S. 232 (1921) (Pitney, J., concurring in part)). 129. See generally Ilya Somin, What No One Talks About During Election Season: Voter Ignorance, FORBES (Nov. 3, 2014, 3:08 PM), http://www.forbes.com/sites/realspin/2014/11/03/ what-no-one-talks-about-during-election-season-voter-ignorance/ [http://perma.cc/7SS7-JPF3] (discussing voter ignorance generally). 130. N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 207 (2008). 131. Michael Auslen, Just 1 Democrat Running for Hamilton County Office, INDIANAPOLIS STAR (Oct. 28, 2014, 6:42 PM), http://www.indystar.com/story/news/politics/2014/10/28/just- democrat-running-hamilton-county-office/18062675/ [http://perma.cc/DGP2-SEUY]. 132. Id. The Democratic candidate only received twenty-eight percent of votes in that race. Past Election Information, HAMILTON COUNTY ELECTIONS OFF., http://www.hamiltoncounty. in.gov/225/Past-Election-Information [http://perma.cc/NH3Q-F4QA] (last visited Aug. 25, 2015). 133. Past Election Information, supra note 132. 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 519 elections by only voting in the general election? Like independent and third-party candidates in Marion County, other candidates’ names may appear on the Hamilton County ballot, but their loss is somewhat inevitable. Under the Seventh Circuit’s conception of meaningful participation and effective voice, it is hard to imagine why judicial reform would not be warranted in places like Hamilton County. The Seventh Circuit is trying to make Marion County judicial134 elections more competitive than the Constitution requires. Furthermore, the practice of asking candidates to contribute money to cover a party’s legitimate election costs does not affect the system’s constitutionality. Although it may be poor policy to involve money in party nominations for judicial candidates, the Court in Jones held that “the processes by which political parties select their nominees are . . . [not] wholly public affairs that States may regulate freely.” Similarly, the Court in Lopez Torres recognized that the First135 Amendment confers a right of association for political parties that protects how a party chooses its candidates. The New York Democratic Party in Lopez136 Torres used far more pernicious criteria than parties in Marion County for excluding candidates from the party’s nomination list. The Democratic Party137 declined to nominate Lopez Torres because she refused to hire a court attorney of the party’s choosing. The attorney the party wanted Lopez Torres to hire138 was the daughter of one of the precinct committeemen involved in the nominating process. However, the Court refused to strike down the system139 because “the First Amendment confers on political parties [the right] to structure their internal party processes and to select the candidate of the party's 134. The Seventh Circuit distinguished this scenario by noting that in jurisdictions nominated by one-party rule, each party may still select candidates for each position. Common Cause Ind. v. Ind. Sec’y. of State, No. 14-3300, 2015 WL 5234614, *7 (7th Cir. 2015). However, Marion County’s system “structurally guarantees that there will be no competition between the two major parties in the general election.” Id. The court misstates the potential competitiveness of these races by choosing the phrase “structurally guarantees.” If enough third-party or independent candidates get on the ballot and enjoy substantial support, the two parties may be forced to compete against one another for every seat. Including the word “largely” would have been more appropriate. 135. Cal. Democratic Party v. Jones, 530 U.S. 567, 572-75 (2000) (“In no area is the political association's right to exclude more important than in the process of selecting its nominee. That process often determines the party's positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party's ambassador to the general electorate . . . . ”). 136. N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 203 (2008); see also Williams v. Rhodes, 393 U.S. 23, 31 (1968) (noting that states need a compelling interest in most cases to justify limiting a political party’s First Amendment right); Nat’l Ass’n for Advancement of Colored People v. Ala. ex rel. Patterson, 357 U.S. 449, 460-61 (1958) (“[S]tate action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”). 137. See Justin Schneider, Lopez Torres: A Lost Opportunity for Judicial Reform, 86 DENV. U. L. REV. 285, 288 (2008). 138. Id. 139. Id. 520 INDIANA LAW REVIEW [Vol. 49:505 choosing.” Although state law prohibits the parties in Marion County from140 explicitly forcing candidates to contribute money to the party, the First Amendment protects each party’s consideration of fundraising in their nomination process.141 Not only is the burden on the right to vote slight, but the State has a significant interest in adopting party nomination limits because of the special nature of the judiciary. At the Constitution’s inception, the Founding Fathers142 understood the unique role of the judicial branch. Alexander Hamilton143 recognized that “[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution.” As a result, the Constitution144 excluded any right for citizens to elect their judges. Even in Indiana, the state145 constitution afforded the Indiana General Assembly the opportunity to create judicial elections, but did not mandate partisan, non-partisan, or retention elections as necessary components of judicial selection. Policymakers146 seemingly prioritized judicial independence over public accountability by enacting these provisions.147 Eliminating party nomination barriers, thereby creating partisan elections for all thirty-six positions on the Marion Superior Court, in exchange for little to no added accountability could severely threaten the court’s independence. Judicial elections could become contentious and the county could do little to prohibit candidates from taking public stances in contested elections on political issues.148 More importantly, one party likely will occupy most, if not all, of the seats on the court based on recent election results. Since 2006, every Democratic candidate149 received more votes in each election than every Republican candidate. In the150 most recent election in 2014, over 10,000 votes separated the Democratic candidate with the least amount of votes and the Republican candidate receiving 140. Lopez Torres, 552 U.S. at 203. 141. Id. 142. See Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015) (“The concept of public confidence in judicial integrity does not easily reduce to precise definition . . . But no one denies that it is genuine and compelling.”). 143. THE FEDERALIST NO. 78 (Alexander Hamilton). 144. Id. 145. See generally U.S. CONST. art. II. 146. See IND. CONST. art. II § 14 (“The General Assembly may provide by law for the election of all judges . . . .”) (emphasis added). 147. Judicial independence, as used in this Note, “embodies the concept that a judge decides cases fairly, impartially, and according to the facts and law, not according to whim, prejudice, or fear, the dictates of the legislature or executive, or the latest opinion poll.” Shirley S. Abrahamson, Thorny Issues and Slippery Slopes: Perspectives on Judicial Independence, 64 OHIO ST. L.J. 3, 3 (2003). 148. Frank Sullivan, Jr., Assuring Due Process Through Merit Selection of Judges, 46 IND. L. REV. 123, 127 (2013). 149. Election Results, supra note 20. 150. Id. 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 521 the most support. Democratic electoral dominance in Marion County judicial151 campaigns is unlikely to change in the near future given the prevalence of straight-ticket voting in Marion County and the difference in straight-ticket voting totals between the two major political parties. Out of the 160,568 votes cast in Marion County in the 2014 general election, over sixty percent (97,001) were straight-ticket ballots. Of these 97,001 straight-tickets ballot, there were152 17,000 more straight-ticket Democratic ballots than straight-ticket Republican ballots. Although Marion County voters elected a Republican mayor in 2007153 and 2011, judicial elections are low-information races where voting based on154 party-affiliation is more prevalent. One should not draw the inference that15 5 elected Democratic judges would make decisions based on their partisan affiliation, but it may hurt its perception as the independent branch, especially when the court addresses political issues like city-council redistricting.156 Although these limits might not be justified in elections for positions within other branches of government, the unique role of the judiciary makes the structure of judicial selection in Marion County permissible.157 C. “Image Is Everything” Andre Agassi may not be a constitutional scholar, but his famous line, “image is everything,” from the popular Canon commercial airing during the 1990s has constitutional relevance. To fulfill its constitutional role effectively,158 the judiciary must be perceived as the neutral, third branch of government that is free from the partisan conflicts that now define the executive and legislative branches. More than other branches, the judiciary derives much of its159 legitimacy from public perception. Court participants must be confident that160 151. Id. 152. Id. 153. Id. 154. Past Election Results, supra note 113. 155. See Meryl Chertoff & Dustin F. Robinson, Check One and the Accountability is Done: The Harmful Impact of Straight-Ticket Voting on Judicial Elections, 75 ALB. L. REV. 1773, 1774 (2011-12) (“Straight-ticket voting virtually nullifies the legitimacy of judicial selection in partisan election states. The low informational nature of these races makes straight-ticket voting attractive to the uninformed voter.”). 156. See, e.g., Ballard v. Lewis, 8 N.E.3d 190 (Ind. 2014). 157. However, as mentioned previously, other courts upheld the use of party limits in contexts outside of the judicial branch. See Blaikie v. Power, 193 N.E.2d 55 (N.Y. 1963); LoFrisco v. Shaffer, 341 F. Supp. 743 (D. Conn. 1972). 158. James O’Brien, Canon’s Marketing Strategy: Capture Moments That Count, MASHABLE (May 8, 2014), http://mashable.com/2014/05/08/canon-marketing-strategy/ [http://perma.cc/ YKV4-ZJMY]. 159. Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1666 (2015). 160. Id. (“The judiciary's authority therefore depends in large measure on the public's willingness to respect and follow its decisions.”). 522 INDIANA LAW REVIEW [Vol. 49:505 the presiding judge in their case will fairly adjudicate their case and will not be guided by other influences. They must be assured that their constitutional due161 process rights will be respected. As Justice Anthony Kennedy aptly noted, the162 law “commands respect only if the public thinks the judges are neutral.”163 Without public confidence, judicial legitimacy erodes.164 Although Marion County’s system is constitutional, parts of the process jeopardize this perception. The money involved in Marion County judicial165 elections does little to rid the perception that the current process creates a “pay- to-play” system. Although money may not actually have this effect, some166 perceive the system as selecting judges based on who financially supports the party, instead of factors like experience and legal expertise, which are more relevant criteria. Other aspects of the slating process draw similar ire. If167 candidates participate in the slating process and lose, they might not get back the money they contributed to the party. They will only receive the contributed168 money if they do not participate in the primary election. Therefore, this169 practice does not incentivize competitive primary elections. It actually acts as170 a disincentive. It leaves candidates who fail to gain the party’s nomination in171 the difficult position of deciding whether to choose to run in the primary or get their money back.172 Critics also fear that this money later impacts judicial decision-making and creates conflicts of interest. Many of the financial contributions come from173 161. Jordan M. Singer, Attorney Surveys of Judicial Performance: Impressionistic, Imperfect, Indispensable, 98 JUDICATURE 20, 21 (2014). 162. See Sullivan, supra note 148, at 123 (“[W]hat we really want from the judge is not so much to win but to receive a fair and impartial adjudication of our claim or defense.”). 163. Nathan Richard Wildermann, Bought Elections: Republican Party of Minn. v. White, 11 GEO. MASON L. REV. 765, 784 (2003) (quoting Justice Anthony Kennedy) (emphasis added). 164. See Williams-Yulee, 135 S. Ct. at 166. 165. However, the flaws in the current system do not justify only striking the party nomination limits from the statute. As mentioned in the previous section, the problems associated with using partisan elections without party nomination limitations could similarly lead to increased partisanship on the bench. 166. Kwiatkowski, supra note 9. 167. Id. 168. One of the party’s slating contracts is available with the author. 169. One of the party’s slating contracts is available with the author. 170. One of the party’s slating contracts is available with the author. 171. One of the party’s slating contracts is available with the author. 172. One of the party’s slating contracts is available with the author. 173. The effect of money on judicial decisions has been discussed at length since the United States Supreme Court decision in Caperton v. A.T. Massey Coal Co., Inc., where the Court held that the Due Process Clause required a West Virginia Supreme Court justice to recuse himself from a case involving a company whose chairman donated to the justice’s campaign. 556 U.S. 868 (2009); see Pamela S. Karlan, Electing Judges, Judging Elections, and the Lessons of Caperton, 123 HARV. L. REV. 80 (2009); see also Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015). 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 523 area lawyers and firms who regularly appear before the court. Marion County174 voters are not alone in sharing this fear. Eighty-three percent of Americans175 indicated campaign donations affected judicial decision-making in a 2011 survey. In a similar poll, eighty-nine percent characterized the impact of money176 on judicial decisions as a “problem.” Even many judges recognize the link177 between campaign donations and the public’s perception of courts. In a 2001178 poll of trial court judges, over half acknowledged the perception that campaign contributions impacted later decisions. When such a large amount of voters179 and judges believe such a relationship exists between money and judicial decision-making, individuals are unlikely to perceive the adjudication of their case as fair and impartial. Whether the money actually has an impact is180 irrelevant because the perceived impact alone justifies reforming the current system. III. MERIT SELECTION AND JUDICIAL PERFORM ANCE EVALUATIONS AS AN ALTERNATIVE TO JUDICIAL SLATING Although the Court upheld New York’s judicial selection process in Lopez Torres, Justice Stevens in his concurrence noted that “[t]he Constitution does not prohibit legislatures from enacting stupid laws.” Whether one considers181 Marion County’s system to be “stupid,” Marion County must reform its judicial selection structure to safeguard the bench from partisan pressures for “[a]n independent . . . judiciary is indispensable to justice in our society.” As182 mentioned previously, Marion County, along with many other trial courts around the state and country, currently fails to promote this goal effectively. Discarding this system and implementing merit selection with a comprehensive judicial performance evaluation program will better encourage a more independent and accountable judiciary. A. Implementing Merit Selection at the Trial Court Level Merit selection is not only possible for trial courts, it is already happening 174. See MARION CTY. ELECTION BD., CANDIDATE CAMPAIGN FINANCE REPORTS, available at http://www.indy.gov/egov/county/clerk/election/candidate_info/pages/candidatecommittees.aspx [http://perma.cc/AZZ2-YZQN] (last visited Aug. 25, 2015). 175. See Shira J. Goodman, The Danger Inherent in the Public Perception that Justice is for Sale, 60 DRAKE L. REV. 807, 810 (2012). 176. Id. 177. Id. 178. Id. at 817. 179. Id. 180. Id. at 818. 181. N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 209 (2008) (Stevens, J., concurring) (quoting Thurgood Marshall). 182. Peterson v. Borst, 786 N.E.2d 668, 672 (2003) (quoting Ind. Judicial Conduct Canon 1(A)). 524 INDIANA LAW REVIEW [Vol. 49:505 in two Indiana counties. Both Lake and St. Joseph County use a selection1 8 3 process similar to the merit selection process for appointing judges to Indiana’s appellate courts. These counties provide a workable framework for how to184 structure judicial nominating commissions at the local level. In Lake County,185 nine members comprise its judicial nominating commission, which a justice on the Indiana Supreme Court or judge from the Indiana Court of Appeals chairs.186 Each of the three county commissioners appoints one non-attorney to the board and the county board of commissioners appoints the fourth non-attorney member by a majority vote. Attorneys within Lake County also elect four attorneys to187 the commission. St. Joseph County uses a similar structure, but employs a188 different process for selecting the non-attorney members of its commission. A189 committee comprised of a judge from the St. Joseph Circuit Court, the president of the St. Joseph County Board of Commissioners, and the mayors from the two largest cities in the county appoint three non-attorney members. The190 composition of these nominating commissions gives local residents and lawyers a significant role in the selection process. Although these commissions submit191 a list of candidates to the Governor, who ultimately chooses which applicant to appoint, the Governor is limited to the list of candidates the local commission192 decides is qualified for the bench in that county.193 Both counties have statutory safeguards that limit the role of partisan politics in this process. First, both counties have term limits that prevent members of194 the nominating commission from maintaining their influence over long periods of time. Commission members from both counties also may not hold an elected195 office or position within a political party. St. Joseph County goes further and196 forbids more than half of the members of the commission from being from the 183. See generally IND. CODE §§ 33-33-71, -45 (2014). 184. See generally id. §§ 33-33-71, -45. 185. See generally id. §§ 33-33-71, -45. 186. Id. § 33-33-45-28. As of August 2015, Justice Robert Rucker chairs the Lake County commission and Justice Mark Massa chairs the St. Joseph County commission. In the Matter of the Designation of Chairs and Liaison Representatives to the Court’s Agencies, Boards, Committees, Commissions, and Task Forces, No. 94S00-1411-MS-712 (Ind. 2014), available at http://www.in. gov/judiciary/files/order-other-2014-94s00-1411-ms-712.pdf [http://perma.cc/SGQ9-QZMY]. 187. IND. CODE § 33-33-45-28. 188. Id. 189. Id. § 33-33-71-30. 190. Id. 191. See generally id. §§ 33-33-71, -45. 192. See id. §§ 33-33-71-37, -45-35. The Lake County commission submits three names to the governor, while the St. Joseph County commission submits five. Id. 193. Id. § 33-33-71-40. 194. See generally id. §§ 33-33-71, -45. 195. Id. §§ 33-33-71-35, -45-33. 196. Id. §§ 33-33-71-30, -45-28. 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 525 same political party. Additionally, only two of the non-attorney members of the197 commission may be from the same party. These statutes are not limited to198 commission members. The statutes’ express language prohibits the Governor199 from considering partisan affiliations in making these appointments. Although200 it would be difficult, if not impossible, to ever prove that political affiliations predominated the Governor’s appointment decision, the importance of an appearance of nonpartisanship cannot be overstated. As mentioned previously,201 the judiciary derives its legitimacy in its perception as the neutral third branch of government. Taking politics completely out of judicial selection may be an202 unattainable goal, but merit selection at the trial level appears more effective at reassuring court participants that when they go into court, the judge’s political affiliation will not affect his decision. The current selection structure does little203 to promote this confidence in the court’s independency. Although processes in Lake and St. Joseph County provide a model for judicial nominating commissions at the trial level, the legislature must enact additional statutory safeguards to prevent partisanship and political influence from compromising the legitimacy of these commissions. First, attorney members of these commissions should not be elected. Allowing attorneys to campaign for these positions opens the process to the same political and partisan influences that characterized past judicial elections in Marion County. Without this provision, a certain political party or group of lawyers within a certain field could band together to elect members who reflect their interests. Members might also aggressively campaign for these positions promising only to select judges who represent a certain view point or set of beliefs. To lessen this influence, a bipartisan group of state legislators could appoint these members, thus preventing one party or interest group from only electing members of its choice. Although204 politics and other factors could influence which attorneys are appointed, these dangers appear to be less inherent than in a system where attorneys actively campaign to be on the commission. Additionally, the list of names sent to the Governor should require a supermajority of votes by the members of the nominating commission. Such205 197. Id. § 33-33-71-30. 198. Id. 199. See id. §§ 33-33-71-40, -45-38. 200. See id. §§ 33-33-71-40, -45-38. 201. See Singer, supra note 161, at 21. 202. Edwin L. Felter, Jr., Accountability in the Administrative Law Judiciary: The Right and the Wrong Kind, 86 DEN. U. L. REV. 157, 163 (2008) (quoting William Rehnquist). Judicial independency is “the cornerstone of our constitutional system of separation of powers.” Id. at 162. 203. Sullivan, supra note 148, at 124 (“Our constitutional right to due process of law guarantees us a fair and impartial adjudication of our case.”). 204. The commission could include an attorney member and non-attorney member appointed from each of the four caucuses in the Indiana General Assembly. 205. For example, under the proposed scenario in the previous footnote, a candidate would not be selected unless he or she received at least six votes from the eight member commission. 526 INDIANA LAW REVIEW [Vol. 49:505 a provision would prevent the commission’s majority, who may be from a single interest group, from selecting every candidate. This mechanism would force members of the commission with different interests and political affiliations to work together. Although it may lead to significantly longer discussions and meetings by the commission, it assures that nominees enjoy a broad consensus of support. The list of applicants should also be confidential. Although this may, admittedly, reduce the perceived transparency of the selection process, keeping this list private would lead to a greater pool of qualified candidates. The206 availability of applicant lists may limit the number of candidates that apply for a vacancy on the Marion Superior Court. Prospective applicants may fear that applying, but ultimately failing to gain the appointment, could negatively affect their current practice, as they could foresee clients switching to another lawyer that may not have judicial aspirations. They may also fear the potential public embarrassment that may accompany failing to gain the appointment. Prohibiting public disclosure of the list would not completely eradicate some of these fears, but would better encourage qualified, capable candidates to apply. Keeping this list confidential would also reduce the political game that often accompanies the merit selection process. Although candidates could attach letters of recommendations with their applications, supporters of a certain applicant would be unable to lobby against other candidates, who may actually be better suited for the court. Without these additional safeguards, merit selection could become207 as partisan and political as past judicial elections. 208 Opponents of merit selection fear that although merit selection may produce a less partisan judiciary, it may also produce a less diverse bench. They fear209 that racially diverse candidates in Marion County might not enjoy as much success in merit selection as they have under the current system. As of 2014,210 ten out of the thirty-six Marion Superior Court judges are racial minorities.211 206. Keeping applicant lists confidential is not out of the ordinary, as applications for federal magistrate positions are generally confidential. See, e.g., Job Details for U.S. Magistrate Judge, U.S. CTS., http://www.uscourts.gov/careers/current-job-openings/83634 [http://perma.cc/QZU6- 2SN3] (last visited Sept. 20, 2015). 207. However, eliminating letters of recommendation altogether may be the only way to eliminate this unsavory aspect of many merit selection processes. 208. Kwiatkowski, supra note 9. 209. Having a racially diverse bench has many benefits, including “increase[d] public confidence in the courts.” Malia Reddick, Michael J. Nelson & Rachel Paine Caufield, Racial and Gender Diversity on State Courts, 48 JUDGES J. 28, 28 (2009). 210. Minority legislators in Illinois expressed similar concerns about judicial reform in Cook County, Illinois, fearing merit selection would lead to less diversity on local benches. Rene A. Torrado, Jr., The Challenge of Merit Selection, CBA REC., April 1996, at 11. However, the merit selection system passed by the Illinois General Assembly did not decrease minority representation on the bench. Id. 211. Court Listings, MARION COUNTY SUPERIOR CT., http://www.indy.gov/eGov/Courts/ Superior/CourtInfo/Listings/Pages/Home.aspx [http://perma.cc/FTL2-TJW6] (last visited Jan. 1, 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 527 Additionally, the current selection process produced minority judges who went on to serve with distinction on other courts, including Carr Darden, who served on the Indiana Court of Appeals from 1994 to 2012, and Tanya Walton-Pratt,212 Indiana’s first female African-American federal court judge. However, there213 is evidence that merit selection processes select racial minority candidates at a higher rate than other selection systems. The American Judicature Society214 found in a 1999 study that “merit selection commissions [generally] tend to affirmatively select minority applicants as nominees for judicial vacancies.”215 In 2009, authors of a similar study concluded that “minorities and women fared very well in states that used merit selection.” Given the success of minority216 candidates in other merit selection systems, its implementation in Marion County is unlikely to lead to a homogeneous bench. B. Legitimizing Retention Elections However, comprehensive accountability mechanisms must accompany merit selection reform if the Marion Superior Court and other trials courts truly want to eradicate partisan politics from judicial selection. Without these evaluations,217 ineffective, partisan judges could serve decades on the court with little accountability. This is possible because removal is problematic in merit218 selection processes. Merit selection systems often use low-information,219 retention elections where voters choose to retain a judge with a simple “yes” or “no” vote. A judge then serves a long term before voters have the opportunity220 once again to vote on the judge’s retention. These retention elections are often221 2015). 212. Judge Carr L. Darden, CT. APPEALS INDIANA, http://www.in.gov/judiciary/appeals/2452. htm [http://perma.cc/7N4E-XVRR] (last visited Aug. 25, 2015). 213. Judge Tanya Walton Pratt, U.S. DIST. CT. FOR S. DIST. INDIANA, http://www.insd. uscourts.gov/content/judge-tanya-walton-pratt [http://perma.cc/U5E9-D9FU] (last visited Aug. 25, 2015). 214. K.O. Myers, Merit Selection and Diversity on the Bench, 46 IND. L. REV. 43, 48 (2013). At the very least, merit selection produces as much diversity as other selection processes. Id. 215. Id. at 50 (quoting KEVIN M. ESTERLING & SETH S. ANDERSEN, DIVERSITY AND THE MERIT SELECTION PROCESS: A STATISTICAL REPORT, AM. JUDICATURE SOC’Y 9 (1999), available at http://www.judicialselection.us/uploads/documents/diversity_and_the_judicial_merit_ se_9C4863118945B.pdf [http://perma.cc/847N-CK7B]). 216. Reddick et al., supra note 209, at 30. 217. See generally Rebecca D. Gill & Kenneth J. Retzl, The JPE Commission Toward a More Transparent and Informative Evaluation, 98 JUDICATURE 26, 26-27 (2014). 218. See id. 219. See id. 220. Judicial Retention 2014, DIV. ST. CT. ADMIN., http://www.in.gov/judiciary/admin/ 2924.htm [http://perma.cc/QF65-AXW8] (last visited Aug. 25, 2015). 221. Indiana appellate court judges face retention at the next general election after their appointment, but then do not face retention for another ten years. IND. CONST. art. VII, § 11. 528 INDIANA LAW REVIEW [Vol. 49:505 uncompetitive, as voters retain over ninety-nine percent of judges nationwide in retention elections. Voter participation and turnout in these elections is low.222 223 The lack of competitiveness could be attributed to the absence of readily- available, qualitative information about these judges. Although a few local and224 state evaluation programs exist, these programs fail to provide this necessary type of information. The most thorough source of information is the Indianapolis225 Bar Association’s judicial survey. Before Marion Superior Court elections, the226 Indianapolis Bar Association (“IndyBar”) surveys its members and asks each to critique the superior court judges. IndyBar posts this information online where227 it is accessible to the public. However, this poll only provides feedback from228 one group of court participants—lawyers. Feedback from plaintiffs,229 defendants, jurors, witnesses, and other court participants, who are familiar with the judge and his performance, is not included. Additionally, these types of230 polls by bar associations are less reliable because they are influenced more by reputation than experiences with that judge in the courtroom. Therefore,231 although Indiana’s Division of State Court Administration also posts information about each appellate court judge up for retention election on its website, this information is similarly inadequate because the only evaluative data is a link to an Indiana Bar Association survey. Furthermore, Indiana prohibits judicial232 incumbents from campaigning in retention election unless they face organized opposition. Although judicial campaigning has its drawbacks, voters lack233 information that could provide important insight about the judge’s performance. 234 A more comprehensive evaluation system is necessary. Indiana should create a judicial performance evaluation system similar to the system that Colorado235 currently uses for its trial courts. When a trial judge is up for a retention236 222. Gill & Retzl, supra note 217, at 26. 223. Id. 224. Id. (“The same lack of information plagues retention elections. Perhaps this is one reason very few judges lose retention elections.”). 225. See Judicial Retention 2014, supra note 220. 226. See INDIANAPOLIS B. ASS’N JUD. SURV., http://www.indyjudges.org [http://perma.cc/ XEN5-8Q6C] (last visited Aug. 25, 2015). 227. Id. 228. Id. 229. Id. 230. Id. 231. Jennifer K. Elek et al., Judicial Performance Evaluation in the States: A Re-Examination, 98 JUDICATURE 12, 13 (2014). 232. Id. 233. Judicial Retention 2014, supra note 220. 234. Gill & Retzl, supra note 217, at 26-27. 235. Colorado is one of eighteen states with its own judicial evaluation program. Id. 236. Eighteen other states using merit selection currently have formal judicial performance evaluations. Id. 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 529 election in Colorado, a local judicial performance commission evaluates that judge. These commissions also perform one interim evaluation on the judge.237 238 Like the judicial nominating commission at the appellate level in Indiana, both attorneys and non-attorneys serve on these commissions. State officials appoint239 many of the commission members.240 The commission gathers data from a variety of individuals that appear in the judge’s court. Not only do lawyers fill out surveys, but litigants, jurors, expert241 witnesses, and law enforcement officials do as well. Other citizen feedback is242 not completely excluded from these evaluations, as Colorado also holds public243 hearings to allow public input about a judge’s performance. General members244 of the public may also submit written comments for consideration by the commission. The process does not exclude the judge either. The commission245 246 also interviews judges, in which judges may “evaluate themselves and defend247 their performance to the commission.”248 States like Colorado do not limit performance evaluations to the content of each judge’s substantive opinions. These evaluation commissions also consider249 other subjective factors, including each judge’s integrity, legal knowledge,250 communication skills, temperament, administrative performance, and service to the legal profession. Instead of assessing personality traits or general251 reputation, commissions ask individuals familiar with the judge about the judge’s procedural fairness. The main inquiry is whether participants received a fair252 237. COLO. REV. STAT. § 13-5.5-106 (2014). Each twenty-two local judicial district has its own commission. Id. § 13-5.5-104. 238. Id. § 13-5.5-106.3. 239. Gill & Retzl, supra note 217, at 29. 240. Id. 241. Rebecca Kourlis, Judicial Performance Evaluation, 56 WAYNE L. REV. 765, 767 (2010). 242. Id. 243. Seth S. Andersen, Judicial Retention Evaluation Programs, 34 LOY. L.A. L. REV. 1375, 1381-82 (2001). 244. Id. 245. Id. 246. Gill & Retzl, supra note 217, at 29. 247. Andersen, supra note 243, at 1381. 248. Gill & Retzl, supra note 217, at 29. 249. See COLO. REV. STAT. § 13-5.5-105.5 (2014). 250. Singer, supra note 161, at 21 (“While certain objective measures can roughly capture a judge’s commitment to providing fair procedures, they cannot fully capture the litigant’s feeling that she (and her counsel) have been treated fairly and with dignity and have been afforded the opportunity to tell her story.”). 251. COLO. REV. STAT. § 13-5.5-105.5. These criteria allow a commission to inform voters not only whether a judge should be retained, but how the commission came to its conclusion. Kourlis, supra note 241, at 766. 252. Kourlis, supra note 241, at 767. Not only does Colorado’s system focus on procedural fairness to prevent a judge’s reputation from guiding his evaluation, but procedural factors are also 530 INDIANA LAW REVIEW [Vol. 49:505 trial. This allows judges to focus on “fair and efficient adjudication rather than253 reaching politically popular outcomes.” 254 Based on these evaluations, the commission will recommend to voters whether to retain the judge. The commission may make one of three255 recommendations: “Do Not Retain,” “Retain,” or “No Opinion.” However,256 before making this determination, many jurisdictions, including Colorado, allow judges to respond to unfavorable evaluations. These commissions sometimes257 publish the judge’s responses along with the commission’s evaluations. The258 commissions may also highlight an area of concern and create a performance improvement plan along with their recommendations. The commissions then259 send their evaluations and recommendations directly to voters, instead of only appearing on a website. Therefore, voters have the necessary information at260 their fingertips when they go to the polls. 261 However, budgetary concerns could prevent the implementation of a performance evaluation system in Marion County and in Indiana more broadly.262 Evaluating each trial court judge may be expensive. Alaska spends between $2000 and $4000 for each survey and Virginia spends approximately $5000263 per survey. States like Massachusetts spend far less, but do not publish judicial264 surveys for voters to use in determining whether to retain a judge. Although265 using online surveys may reduce costs, implementation of comprehensive judicial performance systems is necessary to insure the judiciary fulfills its constitutional role as the fair and impartial branch—even if it comes at a price. CONCLUSION As discussed in this Note, judicial selection in Marion County may only be described as unique. Forty years of election results demonstrate that the current structure gives local party leaders significant influence in the selection of the court and often leads to uncompetitive primary and general elections. However, easier to quantify. Elek et al., supra note 231, at 16. 253. Singer, supra note 161, at 21. 254. Id. 255. COLO. REV. STAT. § 13-5.5-106. 256. Id. The commission gave out “Do Not Retain” recommendations to less than one percent of judges from 2002 to 2012. Gill & Retzl, supra note 217, at 30. 257. Gill & Retzl, supra note 217, at 29. 258. Id. 259. Id. 260. COLO. REV. STAT. § 13-5.5-106. 261. Id. 262. See Rebecca Love Kourlis & Jordan M. Singer, A Performance Evaluation Program for the Federal Judiciary, 86 DEN. U. L. REV. 7, 24-25 (2008). 263. Id. at 25. 264. Virginia expected the costs to be later reduced to $3500-$4000 per survey. Id. 265. Massachusetts also does not have a judicial performance commission. Id. 2016] JUDICIAL SLATING IN MARION COUNTY, INDIANA 531 the Seventh Circuit erroneously held that this system was unconstitutional because, despite its flaws, the selection process does not create a substantial burden on the right to vote. Voters may meaningfully participate in these elections because the ballot access provisions are far from stringent, as independent and third-party candidates may easily access the general election ballot and independent voters may vote in political party primaries. Similarly, the slating process used by both major political parties does not affect the constitutionality of the system because the First Amendment right of association extends to political parties to allow them to endorse and choose certain preferred candidates. Unique problems require unique solutions. Reform at the trial level must focus on promoting a more accountable and independent judiciary. To achieve these goals, Marion County and other local trial courts should implement merit selection and create a local nominating commission safeguarded from partisan and political influences. These jurisdictions must also implement judicial performance evaluations, similar to the system used in Colorado, to prevent ineffective judges from essentially attaining life tenure. Although completely eliminating partisan influences is likely impossible, these reforms will build confidence that Marion County is selecting qualified judges to serve on the bench. Marion County cannot wait for another Richard Nixon to trigger judicial selection reform.