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The Rise and Fall of a Reform Bill by Shannon Davis

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Davis is an associate at The Center for Investigative Reporting
Efforts in the past few years to reform judicial elections and strengthen judicial independence have met with mixed results. The Texas legislature recently attempted to place judicial candidate information on the Internet, to offer citizens more detailed background on the candidates and perhaps reduce the costs of judicial campaigns. This seemingly straightforward reform passed with no significant opposition in the Texas legislature. But it met unexpected opposition from Texas governor and Republican presidential candidate George W. Bush.

In May, the bi-partisan bill sponsored by state representative Henry Cuellar, a Democrat, and state senator Robert Duncan, a Republican, breezed through both chambers of the Texas legislature. The legislation also had the support of Republican Tom Phillips, Chief Justice of the Texas Supreme Court.

The legislation called for the Texas Secretary of State to post information distributed by judicial candidates on the Internet. Cuellar, an attorney, thought this legislation was a perfect way to increase voter understanding of judicial campaigns: "If it's hard for us in the legal system to know who the candidates are, then it's definitely going to be hard for typical voters."

But Governor George W. Bush disagreed. In June, Bush vetoed the legislation, saying it would place the Secretary of State in an "inappropriate role." But that reasoning doesn't stand up to the scrutiny of others who study the problems of judicial campaigns. Anthony Champagne, a professor at the School of Social Science at the University of Texas and an expert on judicial elections, says "there is nothing inappropriate about trying to get truthful information out to the public."

Champagne is not alone. The American Bar Association has recommended that states which elect judges should provide voters with candidate information as a means of making voters more aware, and also as a way to try to alleviate some of the increasing costs of campaigning for voter recognition.

According to Luke Bierman, a special assistant to the ABA president, "the bar recognizes the difficulties in some states to move away from an elected judiciary." For this reason, Bierman says "the association supports greater access to information which would result in a more educated and knowledgeable public."

Roy Schotland, a Georgetown Law professor and a member of the ABA Task Force on Lawyers' Political Contributions is more blunt. He reacted to Governor Bush's veto by complaining, "it's obvious Bush didn't spend a day thinking about this legislation." He emphasizes that the idea behind judicial voter guides on the web is to avoid costs to the candidates. "This is a cookie-cutter function for the Secretary of State," Schotland says. "The (Bush) reasoning makes no sense, its preposterous."

If the legislation had passed, Texas would not have been alone in putting information on the Internet. Washington (since 1996) , Alaska, California and Oregon have web judicial voter's guides. (The office of the lieutenant governor publishes Alaska's voter guide; the other three are published by by the Secretary of State in each state. )

Cuellar, surprised with the Bush veto, says the Secretary of State could avoid being placed in an "inappropriate role" if a simple disclaimer was placed at the end of the guide saying that the Secretary of State has no editorial authority over candidate information.

But this simple disclaimer may not be enough to fix the reason for Bush's veto, according to Anthony Champagne. He speculates that a greater informed public may encourage split ticket voting and harm the Republican majority in Texas. "The underlying reason," Champagne says, "could be that it might hurt Republican judicial candidates."

Texas Chief Justice Phillips says there is a study underway to evaluate whether a role for the Secretary of State in this voter guide is appropriate.

"We've asked the Judicial Council of Texas, which studies and makes recommendations about policy, to study the issue of the Secretary of State's participation in voter guides, either through the Internet, or through mail services." Observers are awaiting the council's recommendations.

In the meantime, Phillips said voters would have access to information on judicial candidates, just not through the Secretary of State. "We asked the state bar to conduct such an Internet site in 1998, and I assume they'll do it again for future elections."

Cuellar doesn't plan on giving up, either. His intention is to introduce the bill again in the next Texas legislative session, after researching and making the necessary adjustments it will need in order to pass. "In a state as large and diverse as Texas," Cuellar says, "We should have a voter guide offered through the Internet."

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