STARKVILLE – Mississippi judicial races are supposed to be non-partisan — meaning that candidates don’t run under the cloak of any political party. The 2002 case Republican Party of Minnesota v. White drew a bright line that judicial candidates had free speech rights that states were not free to constrain through so-called “announces clauses.”
By law, Mississippi has nonpartisan elections for the state Supreme Court, Court of Appeals and all chancery, circuit and county court judges. Mississippi’s 198 Justice Court judges are the only judges elected in openly partisan races.
Despite the laws prohibiting partisan judicial elections in the state, voters can readily ascertain the partisan and philosophical stances of judicial candidates. A check of the campaign finance rolls establishes just as quickly who the major financiers of the state’s political parties are supporting among the candidates.
Often, the wink-and-nudge of “nonpartisan” judicial elections gives way to all but open political acknowledgment of the partisan leanings of the candidates and the political parties. The current round of judicial elections has been no exception.
The Minnesota ruling struck down hard-and-fast restrictions on the ability of judicial candidates to answer policy-specific questions and to robustly campaign. Political parties interpreted the ruling as a license to support candidates so long as there was no direct connection.
Canon 5 of Mississippi’s Code of Judicial Conduct bars candidates from voicing opinions on issues likely to come before the court. The White case held such restrictions unconstitutional.
The court ruled it may be constitutional to prohibit a candidate from pledging how he will judge cases if elected but held that a blanket “gag rule” impeded the election process by encouraging voter access to information.
Mississippi is one of 21 states that elect judges (eight in partisan elections and 13 in nonpartisan elections like Mississippi’s). Five states see their judges selected by gubernatorial appointment.
South Carolina and Virginia choose appellate court judges by legislative election. Michigan chooses its Supreme Court judges by the “Michigan method” which combines a partisan candidate selection process with nonpartisan elections.
Another 21 states choose judges by so-called “assisted appointment” – a process by which the governor appoints state judges with help from a nominating commission or board.
Since the state’s first constitution was drafted in 1817, Mississippians have argued over whether to appoint or elect judges. In 1832, a constitutional convention fight erupted between three groups — the “aristocrats” who favored the appointment of all judges, the “half hogs” who wanted to elect some judges and have others appointed, and the “whole hogs” who wanted all judges elected.
History shows that the “whole hogs” won in 1832, and Mississippi has been electing judges ever since. Of the state’s current 545 judges from the Supreme Court to the municipal courts, only municipal judges are appointed.
Let’s face it. Mississippi voters like electing their political leaders, and that’s all the way down the ballot to justice court judges. While there is a growing sentiment in the state to adopt a different method of selecting judges, many state voters cling to the notion of electing judges.
Yet in terms of campaign finance, there are holes in the current judicial election process related to campaign finance laws.
Mississippi corporations are limited to $1,000 contributions in judicial races. Non-corporate donations in judicial races are capped at $5,000 for the Supreme Court or Court of Appeals races and $2,500 for county, circuit or chancery court judicial races.
If a corporation wants to use corporate funds to donate to a candidate, $1,000 is the limit from the corporation. But trial lawyers, even trial lawyers in the same firms, can donate $5,000 per lawyer and include spouses and employees.
The law simply makes it easier for lawyers to make legal, reportable contributions to judicial candidates than it does for the banks, insurance companies and healthcare facilities that want to make corporate donations.
Our judicial races reflect that state voters have some excellent choices on Nov. 5 but describing that process as a “nonpartisan” election rather strains credulity.
Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com.