The national attention on Democrat Beto O’Rourke’s challenge to Ted Cruz’s U.S. Senate seat has fueled talk of red Texas taking a turn. So have the number of voters that have hit the polls early.
But one piece of the ballot where the prospect of a blue wave remains unlikely: judicial seats on the state’s highest court. Since 1994, all nine justices have been Republican. “The Texas Supreme Court has lacked diversity for a very long time,” says Kathy Cheng, a Democrat running for place 6 on the court against incumbent Jeff Brown. “That’s partly due to the fact that our Texas constituents aren’t aware the judges are elected.”
One reaction Cheng says she has consistently received during trips across the state: Voters express surprise that a judicial candidate would even need to campaign. She says a lot of people assume justices are appointed. And with little attention placed on the Supreme Court races, party affiliation has made an outsized impact.
Texas is one of nine states that elects supreme court justices via partisan elections. Fourteen states elect through a nonpartisan election, and the governor appoints—usually through a nominating commission—in most of the others.
For RK Sandill, a Democrat running against John Devine for place 4, the system as its constructed is begging for some diversity of thought. He says the all-Republican Supreme Court has crept further and further to the right in order to appease conservative voters during primary elections. That, he says, is why he chose to run.
“I saw the court drifting more to the right, toward an extremist agenda, and saw that it wasn’t necessarily working for every day Texans,” says Sandill. “What they were doing wasn’t necessarily indicative of what the legislature intended or what the Texas or United States constitution intended.”
And then there are the issues of race and ethnicity. In a lawsuit filed in 2016, a group of Latino voters and a community group argued that the system of electing judges hasn’t allowed the Hispanic population’s vote to be heard. But a judge ruled for the current system in September, writing that it couldn’t be determined whether “race rather than partisanship” caused the judicial choices of Hispanic voters’ to lose elections, according to the Texas Tribune.
Cheng says she recognizes the role that her ethnicity could play in her bid but has chosen to see it as an opportunity to change the perception of what can be accomplished.
“People look at me, they say, ‘Kathy you have so many disadvantages. One, you’re running the judicial race; not that many people pay attention to the judicial race.’ … Second, I’m an Asian American candidate. And third, I’m an Asian American female candidate,” she says.
To give Hispanic voters a larger say, the group who brought the suit against the state supported a move toward electing justices by voting districts. Neither Sandill or Cheng support that change.
But both acknowledge the way that party affiliations play in the outcomes of their elections, which, Sandill notes, are in theory attempting to elect people who will “be faithful to one ideal and that’s to the law of the state of Texas.” Cheng says she’d like to see the state move to a nonpartisan system for judicial races. But in the meantime, she’s confident her canvassing efforts will pay off.
“When I achieve my goal, that will be the inspiration to all who have sat on the sideline and said, ‘No, there’s no use. It’s pointless,’” she says.
