Posts Tagged Judicial Retention

A Retention Vote for Morris Hoffman

I’ve never made any secret of the fact that I usually vote against retaining judges.  It’s not out of any personal animus, of course.  For citizens who are asked to keep track of so much when they vote, it’s almost impossible to learn enough law, let alone enough about every judge, to make a truly informed decision on a given judge.  But we have retention votes for a reason, and it’s helpful to judges to be reminded every so often that the law belongs to the people, not to the lawyers, or even to the legislature.  As long as the retention voters weren’t close, a No vote was a reasonably safe protest vote that would only tip the scales if other, well-known information about that particular judge pushed a lot of other people to vote the same way.

But times have changed, the retention votes have gotten closer, and it’s important now to reward judges who’ve actually done a good job on the bench.

So I’ll be voting to retain Morris Hoffman as a Denver judge, and I would ask all those voting in Denver to do the same.

I had the pleasure of sitting in Hoffman’s court eight years ago as he decided Common Cause v. Davidson – an attempt by Common Cause and other Democrat groups to hijack the voting rules in Colorado in order to prevent certain basic ballot security measures – and was impressed with Hoffman’s humor and ability to keep things moving without cutting people off.  The opinion is readable even by laymen – not an easy thing for a judge to do when time is short and the pressure to be right is long.  And the ruling itself was a model of understanding both of the role of judges and of the nature of voting.

I quoted some of the salient bits at the time, but they’re worth quoting again:

But the Court has also recognized that the right to vote, unlike some other individual rights that are exercised in essential opposition to the state, is a right that has meaning only in a highly regulated social context. A vote is not merely one individual’s casual expression of political opinion at any particular time on any particular subject. Votes count, and because they count they must be sought and given in a structured environment that allows the votes of all other proper voters to count….

Maximizing voters’ access to the process is just one part of the compelling interest the state has in regulating the architecture of elections. Preventing voters from voting more than once, preventing otherwise ineligible voters from voting, and preventing other kinds of election fraud, is part and parcel of this same compelling state interest, as the Burdick Court expressly recognized when it included the words “fair and honest” at the very beginning of its litany of state interests in structuring elections. Professor Chemerinsky had it only half right, and perhaps not even that, when, in the aftermath of the controversy of the 2000 election, he wrote “What good is the right to vote if every ballot isn’t counted?” (Erwin Chemerinsky, Fairness at the Ballot Box, 40 TRIAL—APRIL 32 (2004).) A complete description of the state’s interest in regulating elections should have included something like, “What good is the right to vote, even if every ballot is counted, if the votes of duly registered voters are diluted by the votes of people who had no right to vote?”

It may or may not be true, as Plaintiffs claim, that as an historical matter actual voter fraud has been rare in Colorado. But the state has a legitimate, indeed compelling, interest in doing what it can to make sure that last month’s fraudulent or no-longer-eligible registrant does not become next month’s fraudulent voter. Ms. Davidson and local election officials testified that once a fraudulent regular ballot is cast, and the voter’s identity forever divorced from the ballot, there is no way to remedy the fraud. The fraudulent vote will count. That is, election fraud must be detected before fraudulent regular ballots are cast and fraudulent provisional ballots are counted.

Nor do I think it likely that Plaintiffs will be able to demonstrate that the identification requirement is discriminatory or will have disparate impacts…. Plaintiffs’ suggestion that the identification requirement will “chill” people without identification may be true (though there was absolutely no credible evidence of that), but then again it may also “chill” fraudulent voters. Whether one kind of chill justifies the other is precisely the kind of public policy choice that must be made by legislators, not by judges legislating under the cover of strict scrutiny.

In what must surely qualify as one of the understatements of the year, even Plaintiffs’ own witness, a Denver election official, testified that allowing voters to vote in any precinct they wished “could be problematic.”

…At the moment, if I were to try to design a system that maximizes the chances that fraudulent and ineligible registrants will be able to become fraudulent voters, I’m not sure I could do a better job than what Plaintiffs are asking me to do in this case—allow voters to vote wherever they want without showing any identification.

(My own emphasis added throughout.)

For better or for worse – and probably for the much worse – courts across the country haven’t accepted these basic tenets of how a voting system ought to work, but that doesn’t make the reasoning here any less correct.

I don’t want to go overboard here.  We’re talking about one decision, one data point, in a much longer judicial career.  But given the stakes of the case, it’s a pretty large data point, and it’s one more than most of us will have on most of the judges.  Let’s reward it.


No Comments