Let the Voters Decide

A week after Halloween, Election Day has finally arrived. A coworker of mine was recently naturalized after living in the U.S. for many years. He is thrilled to have the opportunity to actually vote. I disagree with him politically, but I am almost as excited for him as he is for himself. I would like to see more of that kind of enthusiasm among long-time voters.

One of the things that bothers me about our current system is the feedback mechanism we have for elected positions that have less public visibility. I think about elected judges, for example. How many of us have spent time in one of their courtrooms? I have served jury duty exactly three times during my life, and I have testified in court once. I have been to small claims court a couple of times. These experiences have given me a very limited view of a very few judges. How am I to know whether to re-elect a judge or not?

Well, I pop open my handy-dandy Utah Voter Information Pamphlet to Section C, where I find information about judges. For each judge there is a very brief bio along with a listing of responses to 15 questions by a random sample of attorneys that have appeared before the judge. The 15 questions differ depending on judicial level, and there are only 13 questions for district and juvenile court judges. You need to see pages 3-4 to see what questions were asked. For judges whose courts include juries, a random sampling of jurors answered 15 questions (page 4).

Most of the questions revolve around courtroom management and the appearance of fairness. Attorneys that practice before a judge can obviously be tainted by certain biases. For one thing, many of the attorneys work with the judge on a regular basis. It’s kind of like being a coworker. Am I completely objective about my coworkers? I don’t know. I don’t mean to offend anyone in the legal profession, but my limited experiences inside the courtroom haven’t inspired a great deal of confidence in the competence of attorneys that practice before those courts. In other words, I feel that the attorney answers need to be taken with a large block of salt.

For each question, attorney surveys allow the respondent to choose among a range of six possible choices from totally favorable to inadequate. Almost all judges receive ratings of 90% or higher totally favorable on each question, unless they have done something really bizarre, like get themselves in the national media spotlight as the epitome of a bad judge, like Leslie Lewis of the Third Judicial District (Salt Lake, Summit, and Tooele Counties), and then they receive at least a 70% totally favorable rating. From a statistical viewpoint, ratings like these are so skewed as to be meaningless. It means that our survey methodology (questions, study group selection, groupthink in interpreting questions, gathering method, etc.) stinks.

Juror surveys are also meaningless. Jurors only get two possible choices for their answers: yes and no. It’s a pass/fail thing rather than a grade. Almost no judge (even the notorious Leslie Lewis) received less than 97% yeses on any question. Again, from a statistical view, these responses are meaningless.

I don’t mean to imply that we don’t have great judges in Utah, but just as reality dictates that all students cannot be A students, reality dictates that not all judges can in reality receive a top grade. (We don’t live in Lake Wobegon, where all the children are above average.) But for most voters, the only information they have to make decisions about judicial candidates is the Utah Voter Information Pamphlet, which is woefully inadequate for that purpose.

Similar arguments can be made about some of the county positions regularly on the ballot (surveyor, treasurer, clerk, auditor, etc.) Most voters just don’t have access to enough information to make an informed decision. Sure, we could all attend all of the city and county meetings, and we could go sit in the galleries of courtrooms, but who has the time for that?

Some claim that the answer to this problem is to remove these officials from the ballot and make them appointed by the executive. The argument goes that we allow the President to select important offices like U.S. Supreme Court Justices, Attorney General, Secretary of Defense, Secretary of State, etc. All they need is for the Senate to confirm the executive’s choices. Why shouldn’t this same pattern work for every level of government?

I wholeheartedly disagree with this type of thinking. The best way to hold public officials accountable to the people is to make them occasionally stand for election. Do we want these officials to be accountable to the people or to the oligarchy? I don’t want a county auditor or sheriff that is beholden to the county commission. I want them to be accountable to the people of the jurisdiction they serve.

No, the answer is not to remove voter choice. The answer is to find a mechanism for providing better information to voters. Good government is partially the result of well informed voters.