Utah’s legislative leaders complain that, in their opinion, the state Supreme Court wants to change the form of government in the Beehive State from a republic to a direct democracy.
They’re against that, of course, and for good reasons. Ancient Athenians showed the weaknesses of such a system. So do modern Californians.
The irony is that almost in the same breath, Utah lawmakers also talk about changing the way the state appoints its judges. Instead of having the governor choose a candidate that the Senate can confirm or reject — a republican process involving elected representatives — they are threatening to have judges run for election, a form of direct democracy.
“That’s not off the table, especially (for) our Supreme Court,” House Speaker Mike Schultz recently told the Deseret News/KSL editorial board.
Lawmakers are upset with judges
Schultz and other leaders make no secret of being upset by recent court decisions, especially one that said the Legislature can’t change a law passed by a voter initiative if it would alter state government — a vague term that seems to invite further litigation and is an open invitation for outside money to threaten what makes Utah uniquely Utah.
Electing judges, Utah’s leaders said, is a notion gaining popularity nationwide.
That’s a difficult statement to confirm. There is no visible stampede in that direction. Currently, 22 states elect their judges, with 13 of those doing so in nonpartisan races and nine letting them run in affiliation with political parties. Twenty-eight states use some other method.
Utah’s threat of making its judges stand for election is puzzling in light of the recent controversies. It could well backfire. For example, voter initiatives are popular with voters. If anything, making judges directly accountable to those voters would tend to result in decisions that favor the initiative process.
That is, if you believe electing judges can affect the impartiality of the judiciary.
And, by the way, there are studies that show it might.
Danger of electing judges
The Brennan Center published a research report about a decade ago that looked at the increasing cost of campaigning for judgeships and the possible influences on judicial decisions. I referred to this the last time lawmakers were talking like this, which was in 2020.
“Given the extraordinary power state court judges exercise over the liberty, and even lives, of defendants, it is vital that they remain impartial,” the study said. “But mounting evidence suggests that the dynamics of judicial elections may threaten judges’ ability to serve as impartial arbitrators in criminal cases.”
The Brennan report referred to studies showing that “the more frequently television ads air during an election, the less likely state supreme court justices are, on average, to rule in favor of criminal defendants.”
Also, judges in Pennsylvania and Washington were shown to issue longer sentences the closer Election Day loomed.
Utah lawmakers say they are concerned about transparency. Judges don’t have to disclose their conflicts, for example. A record of their rulings is hard to assemble. Certainly, these are shortcomings that could, and should, be rectified short of imposing competitive elections.
Also, there is this: Do voters really want another bunch of negative ads during election season financed by out-of-state interests?
Proposition 4
Much of this debate is an outgrowth of Proposition 4, a ballot measure Utah voters narrowly approved in 2018. It set up an independent commission to redraw the state’s political boundaries — something the state constitution says belongs to lawmakers themselves.
The Legislature quickly changed the law so the independent commission’s work became a mere recommendation easy to dismiss, and dismiss they did.
That led to a court challenge and a Supreme Court decision that said the Legislature didn’t have the right to change voter initiatives such as Proposition 4. Meanwhile, 3rd District Judge Dianna Gibson imposed a congressional map that Republican lawmakers strongly oppose. The case has been appealed and a Republican effort is underway to put another initiative on the ballot to reverse Proposition 4.
Republican lawmakers argue effectively that this decision establishes a direct democracy. They, not voters or unelected judges, have sole power to draw political maps. They also believe, correctly, that they should be the ones to write state law. The Supreme Court’s decision seems to make at least some voter approved initiatives into bullet-proof super laws.
Lawmakers warn against becoming like California, a state where citizens often stuff ballots with initiatives, some of which even contradict each other. To guard against this, they have imposed rules that make it difficult to qualify initiatives for Utah’s ballot. Still, voters approved four of them in 2018, and lawmakers saw the need to change every one.
Democracy, even republican forms of it, is not perfect. Still, I’m guessing if a group of popularly elected judges had made the Prop. 4 decision, lawmakers instead would be clamoring for a more controlled selection process, such as we have now, involving a nominating committee, the governor and the state Senate.
Change should not be made merely for change’s sake.