With so much litigation over a variety of voting issues, the Supreme Court of Texas is in the news a lot these days. Will that mean more attention being paid to the four races for SCOTX positions?
The sleepy contests for seats on Texas’ highest courts have taken on new energy this year as Democrats, bullish on their chances to claim seats on the all-Republican courts, seek to capitalize on a series of controversial pandemic- and election-related decisions.
Voters have the chance to choose four justices on the nine-member Texas Supreme Court, the state’s highest court for civil matters, and three judges on its sister body, the Texas Court of Criminal Appeals.
It’s notoriously difficult for judicial candidates, even those running for the state’s high courts, to capture voters’ attention, particularly with a hotly contested presidential race above them on the ballot. But this year, Democrats say they have something new to run against: decisions by the high court to end Texas’ eviction moratorium and election opinions that limited mail-in voting options.
“The Supreme Court has been in the news on almost a weekly basis over the last several months … with all the election shenanigans that are going on,” said Justice Gisela Triana, who serves on the Austin-based 3rd Court of Appeals and is running as a Democrat for a seat on the high court. “I think they’ve been complicit in allowing the Republican Party to try to make it harder for people to vote.”
For Republicans, meanwhile, the virus is an argument for sticking with the status quo. Chief Justice Nathan Hecht, who faces reelection this fall, said unprecedented challenges of access to justice and budget concerns during the pandemic would best be handled by a judge with experience running the court.
“We’re in such untraveled waters — dangerous, difficult, challenging times,” said Hecht, who has served on the court for more than three decades. “It takes some leadership not only to try to discern a wise course through all this, but to get the other branches to go along with you.”
Even as President Donald Trump runs an unusually tight race in Texas with Democratic nominee Joe Biden, less controversial Republicans lower on the ballot are expected to perform better in Texas. Republican U.S. Sen. John Cornyn, facing Democrat MJ Hegar, has shown a wider lead in polling than the president, and statewide judicial candidates outperformed U.S. Sen. Ted Cruz in 2018 and Trump in 2016.
Republicans say they’re confident Trump will carry the state — but that the judges could win even if he doesn’t.
Pollsters sometimes view statewide judicial races as pure tests of a voter’s partisan allegiance since so few Texans are familiar with the candidates.
“Even though we’re toward the top of the ticket, people don’t know much about who we are,” Hecht said.
Along with new attention to the high court comes the uncertainty about what the end of straight-ticket voting will mean for Texas. This Nov. 3 marks the first election in which Texans won’t have the option of voting for every candidate in a certain party with just one punch — a colossal change whose effects neither party can fully anticipate.
All that, coupled with a volatile presidential race, means “you just can’t tell” where the outcome may land, Hecht said.
“It’s just completely unpredictable,” Boyd said. A higher profile for the court could help him as an incumbent, he said.
“If people are seeing the coverage and thinking, ‘I need to do my homework on these races,’ I have full confidence that when they do their homework they’ll end up supporting me,” Boyd said.
Democrats see reason for optimism in early voting totals, which have shattered records, especially in large, blue counties like Harris. But Republicans are also turning out to vote early in high numbers.
And there may be more reason for Democrats to be hopeful. Keir Murray, a Democratic operative in Houston, said based on the statewide numbers he’s seeing, women are outvoting men by 10 points — a potentially major boon for an all-female Democratic slate for Supreme Court.
“Women usually outvote men, but not to that degree,” he said.
Let’s start with the obvious – the statewide judicial races are mostly affected by the Presidential race. It’s true that the Supreme Court has been in the news a lot recently and have made a number of consequential rulings that affect not just the election and how it is being conducted but also the COVID pandemic and how it is being handled. The story does a good job laying all this out, and I’d be willing to believe that a lot of people are at least aware of these things. How many of those people are more likely to vote, or are likely to change how they vote, as a result of these stories is a question none of us can answer, but my suspicion is that it’s pretty small. Makes for good speculation and the basis of stories like these, but that’s as far as we can go.
What about the claim that Republicans are likely to win the statewide judicial races even if Biden carries Texas? It’s kind of amazing that Republicans would advance that hypothesis instead of just laugh off the question, but a check of recent elections suggests they’re onto something. All of the Republicans running for statewide judicial office in 2016 won by a wider margin than Trump did, and all of the Republicans running for statewide judicial office in 2018 won by a wider margin than Ted Cruz did. If there are Republican voters who don’t vote for Trump like that, then that’s a plausible scenario. I feel like a lot of the people who avoided Trump but otherwise mostly voted R in 2016 were voting mostly D in 2018, but maybe I’m wrong about that. Keir Murray’s point about the electorate being disproportionately female so far means Dems are probably doing pretty well so far and that’s a boost for all Dem candidates, but it doesn’t tell us anything about how the court candidates may do compared to Trump. I don’t think the Cornyn/Hegar polling tells us all that much either, as there’s a name recognition component to that.
An alternate possibility is that some number of people who vote for Trump will peace out after that. Trump has spent plenty of time attacking Republicans, too, so some of his supporters are loyal to him but not the party. The 2016 experience suggests that’s unlikely, but maybe this year is different. I don’t think the lack of straight ticket voting will matter much. The Supreme Court Chief Justice election is the fifth race people will see on their ballots, following the three federal elections (President, US Senate, US House) and Railroad Commissioner. Maybe some people who aren’t strong partisans will skip those races because they don’t feel they know the candidates well enough, but it won’t be because they’re tired of all that voting.
Look, Democrats are motivated to vote, and they’re pissed at the rulings in some of these lawsuits, even if SCOTX maintained its integrity in the latest Hotze provocation. I think there’s a strong urge to vote all the way down. I just don’t know how to quantify that. I’ll know more after the election.