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Despite obvious disdain for the disparities, a federal judge has ruled in favor of the state on a lawsuit alleging the process of judicial selection — rather than election — in Lake County is discriminatory and unconstitutional.
Judge Philip P. Simon of the Indiana Northern District Court made clear in his order entering summary judgment for the state and secretary of the state that he was only doing so because 7th Circuit Court of Appeals precedent was “in the way.”
The lawsuit was filed in May 2021 by the city of Hammond, Hammond Mayor Thomas McDermott Jr. and voter Eduardo Fontanez. Indiana State Sen. Lonnie Randolph, D-East Chicago, also joined the complaint in his personal capacity.
The plaintiffs alleged that using merit selection for Lake Superior Court judges violates Section 2 of the Voting Rights Act because Lake is one of only three counties where merit selection is used. The process is also used in Marion and St. Joseph counties.
“These three counties make up nearly 66% of the total black residents in Indiana (308,486 out of Indiana’s total of 467,861 black residents age 18 or older),” Simon wrote. “Put another way, two-thirds of black people of voting age in Indiana — those who reside in Lake, Marion and St. Joseph Counties — are unable to vote to elect the vast majority of their state court judges. By contrast, 81% of whites who reside in Indiana live in one of the 89 Indiana counties other than Lake, Marion and St. Joseph Counties, and they can vote to elect all their superior court judges.”
Merit selection is also used for Allen Superior Court judges, but only when there is a vacancy to fill. Allen is also among the state’s most diverse counties.
Simon also pointed to the affidavit of Jerry Bonnet, chief legal counsel in the Secretary of State’s Office, who said, “A merit selection process is essential in a highly populated and highly diverse jurisdiction like Lake County to provide safeguards for limiting political influence in Lake County superior courts.”
“Let’s not beat around the bush: the reference to ‘diversity’ is a not so subtle reference to race,” Simon wrote. “The State thus appears to acknowledge that the ‘diversity’ of Lake County, meaning the significant presence of racial minorities among its electorate, is a reason that superior court judges are not chosen by election but by a merit selection process instead. In the language of §2, the State of Indiana has imposed a procedure on Lake County that denies its citizens the right to vote for superior court judges on account of race or color.”
For their part, the plaintiffs relied on Brnovich v. Democratic National Committee, 594 U.S. 141 S. Ct. 231 (2021), in which the U.S. Supreme Court upheld Arizona voting restrictions that limited who can return early ballots for another person and refused to count ballots cast in the wrong precinct.
Brnovich laid out five “guideposts” for considering Section 2, and Simon opined that all five weighed in favor of the plaintiffs.
However, Simon also ruled that Quinn v. Illinois, 887 F.3d 322 (7th Cir. 2018) — not Brnovich — controls.
In Quinn, the plaintiff-voters challenged the Illinois law that allows the mayor of Chicago to appoint the members of the Chicago School Board.
The 7th Circuit upheld that practice, first ruling that, “as far as we are aware no court has understood §2 to require that any office be filled by election,” and that Section 2 does not apply “unless an office is elected.”
“The second reason blithely given for rejecting the plaintiffs’ VRA claim was that in Chicago no one votes for the school board, so all are ‘treated identically, which is what §2 requires,’” Simon continued.
“With respect, I find the Seventh Circuit’s reasoning in Quinn, and the cases in which it cites, to be unsatisfying, especially in light of Brnovich … ,” he wrote. “Nonetheless, Quinn is controlling law and I am not free to disregard it where it plainly applies.
“And I agree with the State Defendants that Quinn is controlling here. The argument of both the Plaintiffs here and in Quinn is that state law deprives their political subdivision (and them) of the right to vote for a particular officeholder on account of race or color, and that the nomination or election of those officeholders is not equally open to participation of their electorate as compared to members of other political subdivisions of the state.”
Simon concluded, “Whether appointing superior court judges is a better system th(a)n electing them is neither here nor there for present purposes. The question instead is whether under the VRA the General Assembly can withhold the right to vote for a state judicial office in counties with a high percentage of black voters while conferring the right in counties with overwhelmingly white voters.
“In my view, Brnovich requires that question to be answered ‘no.’ But because Quinn stands in the way, summary judgment will be granted in favor of the Defendants.”
The judge also declined to exercise supplemental jurisdiction over claims brought under the Indiana Constitution, and he denied without prejudice the Lake County Board of Elections’ motion for summary judgment, finding he didn’t need to reach that issue.
Indiana Lawyer has reached out to counsel for both the plaintiffs and the state defendants for comment.
The case is Hammond v. Morales, et al., 2:21-cv-160.
While the courts have ruled against the plaintiffs for now, Sen. Randolph is also attempting to address the issue via legislation.
Senate Bill 25 would require Lake Superior Court judges to be elected, though not until the general election that occurs immediately before the expiration of the term of a judging sitting on the court under current law — meaning sitting judges who were appointed would not have to run for election before their term is up.
SB 25 has been assigned to the Senate Elections Committee, which has not yet scheduled a hearing on the bill.
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