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By Marissa McDermott
Did you know that there are only four counties in Indiana that aren’t allowed to vote for their superior court judges? And that those four counties also happen to be the counties with the highest percentage of minorities? And that the small amount of citizen oversight in two of those counties (Lake and St. Joseph) is about to disappear in a cloud of partisan smoke?
A confession: Before being elected Lake Circuit Court judge, I didn’t realize that the selection of judges in Lake County was totally different than that of almost every other county in our state. I assumed most other counties also went through a process in which a handful of people (the nominating commission) interviewed candidates for about 15 minutes each and sent three names to the governor for final selection. But I was wrong. Only Lake, St. Joseph, Allen and, more recently, Marion counties choose judges through this type of process, called “merit selection.” The other 88 counties are permitted to elect their superior court judges.
While the pros and cons of public election versus merit selection could fill another column, the overarching question about Indiana’s judicial selection system is this: If merit selection is better, why not have that system statewide? Why only deprive the most ethnically diverse counties the right to directly elect judges? The stakes are tremendous; merit selection is essentially a lifetime appointment, subject only to a retention vote that has removed just two Lake Superior judges, ever.
When it comes to selectively depriving citizens of their right to vote for judges, Indiana is an outlier. A 2011 survey published by the National Center for State Courts reveals that only a handful of states have separate selection rules for specific counties; most states have consistent rules statewide.
I was licensed to practice for 16 years before really understanding Indiana’s two separate judicial selections systems, so imagine how unaware the average person is. I challenge you to walk up to any person on the street in Hammond, South Bend or Fort Wayne and ask them to name one member of their judicial nominating commission. The response undoubtedly will be, “What’s a nominating commission?”
In reality, most Lake County citizens probably don’t realize the only county judge they elect is the circuit judge (the original judge in the state constitution). But at least those citizens had some oversight over the 16 Superior Court positions, albeit indirectly: Lake County’s current judicial nominating commission is chosen by Lake County attorneys, the Indiana Supreme Court and the Lake County commissioners.
That indirect control is about to become almost nonexistent control. Under a pending bill, which is advancing through the General Assembly, the nominating commissions of Lake County and St. Joseph County would be entirely rebuilt and controlled by the governor. In other words, if House Bill 1453 passes, the governor would, in essence, control both nominations and selections.
The undeniable truth is that there is a long legislative history in this nation of powerful majorities diminishing and silencing the voices of minorities. While I have no reason to believe the motive of the current legislation is racial, this law will undoubtedly have a disproportionally negative effect on citizens who happen to be racial minorities. Or, to use the legal term of art: “disparate impact.”
Consider this: Based on the last U.S. Census numbers, a majority of Indiana’s Hispanics (53%) live in a county that deprives the right to vote for Superior Court judges. And for Indiana’s Black citizens, the percentage is even higher: A full 75% live in a “merit selection” county. This pending law will only further disenfranchise those voters who have already been denied the ability to decide who sits in judgment of them.
But any resident of Lake or St. Joseph County, no matter their ethnicity, should wonder why these two counties have been targeted for this further erosion of democracy. They should wonder why they have little say, and soon will have almost no say, in how 25 of these 27 county judges are picked. They should ask why legislators think direct elections are good for choosing legislators but somehow bad for choosing judges. And the attorneys and judges of Marion and Allen counties should take note that, if this bill succeeds, nothing is stopping their counties from suffering a similar fate.
Disenfranchisement is not a relic of the history books — it is occurring today, right under our noses. Legislators are counting on the fact that no one is paying attention and that they can quickly shove this deeply unfair law through. But whether the bill passes or not, it seems clear that this separate system is certainly not equal.•
• Marissa McDermott is judge of Lake Circuit Court. Opinions expressed are those of the author.
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