Which candidates this fall could have the biggest effect on LGBT rights? The judges.

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Whether a judge is elected or appointed makes a huge difference when it comes to LGBT cases.

By Eric Lesh and Rachel B. Tiven 

 September 28, 2016

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With the election just weeks away, it might seem that gay rights aren’t on the ballot. Save for the states where anti-trans legislation has metastasized, LGBT issues have been largely absent in this political cycle, notwithstanding significant policy differences between presidential candidates.

This November, however, tens of millions of Americans will, in fact, cast a vote on equality — through the practice of electing judges. And if you’re an LGBT person living in states holding these elections, your civil rights are a lot less secure as a result.

A new, comprehensive study by Lambda Legal shows that when judges are elected, queer people suffer. Looking at all state high court cases involving LGBT issues since 2003, courts with partisan elections sided with gays and lesbians in only 53 percent of cases; those without elected judges issued pro-LGBT rulings in 82 percent of cases.

The study examined 127 relevant cases, which touched on varied and wide-ranging issues. Many cases were constitutional challenges to statutes that barred legal recognition of same-sex couples, as well as other family law issues (like second-parent adoptions). Cases also included litigation by transgender plaintiffs (challenging restroom restrictions, for example, or matters related to name changes on driver’s licenses); challenges to ballot language concerning anti-LGBT referendums; and disciplinary action against attorneys who were alleged to hold anti-LGBT attitudes.

Alabama’s Supreme Court, which is elected, refused in 2015 to recognize a lesbian mother as an adoptive parent to her three children, even though both women raised the children from birth and consented to the adoption. Michigan’s Supreme Court, another elected body, ruled in 2008 that the state constitution prohibited public employers from providing benefits to domestic partners. But in Maine, a Supreme Court filled with appointed judges determined that a school discriminated against a transgender girl by denying her right to use the girls’ bathroom, and the similarly appointed Alaska Supreme Court ruled unanimously in 2014 that committed same-sex couples must have the same access to survivor benefits as spouses of people who die from work-related injuries.

So why the difference, if judges are supposed to simply weigh the law and decide based on facts? Because the process of electing judges, by design, makes it impossible for them to act solely as unbiased umpires.

When the fear of losing an election constantly looms, the need to gain voters or energize a political “base” can taint a judge’s decisions. The inescapable pressures of fundraising — of courting donors and securing endorsements — often force candidates to take ideologically extreme positions or appease special interests, even at the expense of individual rights. In short, judicial elections cede justice to politics.

Consider one of the early victories in the fight for equal marriage. In 2009, justices on Iowa’s Supreme Court ruled unanimously that the state’s marriage ban was unconstitutional. The prescient decision was highly unpopular at the time, supported by 37 percent of Iowans. But because the justices — appointees of both Republican and Democratic governors — did not have to directly face voters, they had the independence required to evaluate the case impartially, on its merits alone.

Unfortunately, while Iowa judges are selected by appointment, they keep their seats through popular election. Soon after the ruling, anti-gay groups like the National Organization for Marriage and American Family Association began pouring millions of dollars into the state, urging voters to throw out “activist judges” for doing exactly what they should: uphold Iowans’ rights and treat them equally, even when it’s unpopular. The effort worked, and a year later three justices were ousted as punishment for their marriage decision.

Though elected judges can no longer strip one’s right to marry thanks to Obergefell v. Hodges, the damage they can — and do — inflict on people’s lives is real, significant and growing.

Judicial elections are becoming more partisan and politicized — not to mention exceedingly expensive, owing to an explosion of special interest spending post-Citizens United. And just as the LGBT community has achieved remarkable progress through the courts in recent decades, those seeking to roll back gay rights today are turning to the courtroom as weapon of choice.

The stakes aren’t just high for the LGBT community. All marginalized communities — racial and ethnic minorities, immigrants and the poor — are at greater risk of discrimination from elected judges. Studies show that the more “soft on crime” TV ads that air during judicial elections, the less likely courts are to rule in favor of defendants. The flood of money in judicial races causes judges to issue more pro-business rulings, send more people to jail and sentence people to death.

These imbalances are exacerbated by a stunning lack of diversity in our nation’s courts. While the United States is more diverse than ever, our judiciaries are not. Women are half of the population but less than a third of state judges; people of color make up 40 percent of the population but less than 20 percent of judges.

It is no wonder, then, that three out of every four transgender people say they don’t have confidence in our justice system. The experience of going to court for LGBT people, for people of color and for so many Americans is lined with fear: judges that do not look like them, lawyers and juries that do not trust them, and laws that do not protect them.

Fortunately, there are steps to restore public trust and basic fairness in our courts, starting with ending judicial elections. This shouldn’t be controversial. The United States is virtually the only country in the world that elects judges, and our federal judges are appointed. A similar approach of appointing state judges based on merit is the best way to guard against the growing influence of money and special interests.

We must also diversify our judiciary and work to rid bias from our legal system. For courts to render fair decisions and be seen as legitimate, they must reflect the nation’s rich population and understand the issues facing the communities they serve.

Ending judicial elections won’t be easy or done quickly. Recent efforts to institute appointment systems have stalled, and many states’ merit-selection guidelines have only narrowly survived political attacks. Just last year, for example, Republican lawmakers in North Carolina — notoriously hostile to LGBT rights — passed legislation changing how the state re-elects Supreme Court judges. The effort, which would have allowed a conservative justice to run unopposed this November, thus increasing the likelihood of maintaining the court’s 4-3 conservative majority, was ultimately blocked by a three-judge panel in February.

But it can be done. Using a variety of tactics, we can begin to incrementally restore balance in our justice system, ensuring the law, not politics, shapes legal outcomes.

Until then, people in every state with judicial elections this fall — from North Carolina to Washington, Michigan to Montana — should know that their vote is about more than who calls balls and strikes. It is a referendum on their constitutional rights.

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