Bench Memos

Texas Voters Get a Re-Do in Important Judicial Election

No, the governor of Wisconsin is NOT running for the Texas Court of Criminal Appeals.

In a recent series of posts (here, here, here, and here), on Bench Memos and elsewhere, I discussed the various candidates running in the March 1 Republican primary for the Texas Supreme Court. In Texas, all judges are selected in partisan elections, and in recent decades all statewide elected officials (including judges) have been Republicans, so the GOP primary is the election that matters. By way of an update, all three incumbent Texas Supreme Court justices won re-nomination, and will likely defeat their Democratic challengers in November. (Interestingly, two of the races were fairly close, decided by less than 100,000 votes out of two million cast.)

I did not previously report on the races for the Texas Court of Criminal Appeals, the nine-judge appellate court with ultimate jurisdiction over criminal cases in Texas. Texas is one of a few states that have a bifurcated appellate structure: The Texas Supreme Court hears only civil cases, and the Texas Court of Criminal Appeals (CCA for short) hears only criminal cases. The CCA is a very important court, deciding death-penalty appeals and also delivering hard-fought vindication to former House Majority Leader Tom DeLay and former governor Rick Perry, both Republican elected officials who faced baseless charges in Texas state courts brought by politically motivated prosecutors. Three seats on the CCA were on the ballot on March 1, and two of them will proceed to a runoff on May 24 because none of the multiple candidates won a majority.

The race I wish to comment on is for Place 5, where four GOP candidates vied for the seat being vacated by retiring incumbent Cheryl Johnson. (As with the Texas Supreme Court, all current judges on the CCA were elected as Republicans; one, Place 2’s Larry Meyers, switched his party affiliation to Democrat after getting elected and will likely be defeated in November.) The remarkable thing about the primary election for Place 5 is that the most qualified candidate, Bexar County District Judge Sid Harle, came in last place, while the top vote-getter (with 833,757 votes, 41.48 percent of the total votes cast) was an obscure criminal-defense lawyer from Fort Worth (who also handles administrative-disability claims before the VA) named Richard Walker, who didn’t actively campaign and spent practically no money promoting himself.

How did this happen, you may wonder? The answer lies in the fact that while Walker is registered with the State Bar of Texas as Richard Scott Walker, he practices as Scott Walker, and also appeared on the ballot by that name. In a down-ticket race for an appellate court unfamiliar to most laymen, GOP primary voters apparently thought the governor of Wisconsin was running for the Texas Court of Criminal Appeals — or were prompted to vote for “Scott Walker” because they vaguely recognized the name. The confusion led to the anomaly of the electoral equivalent of a potted plant getting over 800,000 votes! Fortunately, on May 24, GOP voters will get a chance to pay closer attention. Walker faces off against the runner-up, Williamson County assistant district attorney Brent Webster, an experienced prosecutor with numerous endorsements from law enforcement and conservative groups. One hopes that mistakenly selecting the wrong “Scott Walker” is an error that embarrassed Texas voters will only make once.

If an undistinguished lawyer from Fort Worth ends up on the Texas Court of Criminal Appeals due to a fluke, critics of judicial elections will pounce on the incident as further “proof” that judicial selection needs to be placed in the hands of bar associations or other elite panels. Run-off voters, “The eyes of Texas are upon you.” Don’t mess up again.

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