Lawmakers concerned about judicial diversity if ‘merit’ bill passes

Indiana lawmakers have advanced a “merit selection” process to replace the way Marion Superior Court judges get a seat on the bench—a task the General Assembly was charged with after a federal appeals court ruled the current system unconstitutional.

Under the proposed merit selection process—which has already passed the full Senate and a House committee and soon will be taken up by the full House—a judicial nominating commission would interview candidates and the governor would appoint one of three finalists to fill any vacancy on the 36-member Superior Court. Judges would stand for a retention vote at the end of their term.

Lawmakers have been charged with replacing a system the U.S. 7th Circuit Court of Appeals said was rare—and unconstitutional. 

Here’s how it worked: Judicial candidates were endorsed by the major political parties, but people who ran against the party’s endorsed candidates in the primary almost never won.

And in the general election, the parties would run equal numbers of candidates—and just enough in total to fill the open seats. For example, in the 2014 election, Indianapolis voters technically elected 16 Superior Court judges, but it wasn’t really a contest because eight Democrats and eight Republicans—all chosen in the May primary elections—appeared on the ballot unopposed.

The court said that process burdened the right of Marion County residents to cast a meaningful vote.

“Merit selection more closely would probably guarantee that you have good judges and I think it would bring stability to judicial selection here,” said the bill's sponsor, Rep. Dave Frizzell, R-Indianapolis.

But the Indiana Black Legislative Caucus, made up of members of the House and Senate, opposes the bill. They said Monday a merit selection process would result in a less-diverse bench. Rep. Cherrish Pryor, D-Indianapolis, said the group would rather have a straight-up partisan election, which is the system in place in most of Indiana’s 92 counties.

“This type of election ensures minorities have an opportunity, like all the other counties, to choose the judges they see fit,” Pryor said. “It ensures minority representation on the bench. The current bill … encourages disenfranchisement of minority voters and it flies in the face of voting rights.”

Frizzell said he doesn’t believe the selection process would affect the diversity of the bench.

“One of the criteria when the committee decides on a particular judge is, they have to take in mind the diversity of this county,” Frizzell said. "That is still a very important issue that needs to be dealt with by the committee and I’m sure that it will be.”

Since the federal court ruling sent the issue to the General Assembly, legislators have disagreed about whether a merit system or an election is the appropriate path—and how to give voters a meaningful say in the process. Frizzell, and other proponents of merit selection, say voters have an adequate role in the retention vote process.

And he said that, because judicial candidates tend to be so far down the ballot, voters don’t usually know enough about the candidates to make a better choice than a committee of lawyers, judges and others.

But Sen. Greg Taylor, D-Indianapolis, who sponsored the bill in the Senate but now has concerns about its evolution, said that isn’t a good enough reason to take away someone’s right to vote for judges.

“We can make that same argument for school board, township board, but we don’t, because the voters have an opportunity to at least research and look up these people,” Taylor said. “We do understand this is a down-ballot vote, but the voters still have a voice."

The House is scheduled to vote on amendments to the bill Monday. It will need to pass the full House and could go through a conference committee process, where the House and Senate work out differences between the bills, before it clears the General Assembly and heads to Gov. Mike Pence’s desk.