Challenge to Indiana judge selection prompts racial divide in Seventh Circuit responses

CHICAGO (CN) — The Seventh Circuit on Thursday heard arguments over an effective racial division in Indiana's judicial election laws, which elicited widely different reactions from the appellate panelists hearing the case.

At stake is how Indiana structures its Superior Court elections in three of the state's most diverse counties: Lake, Marion and St. Joseph. Voters in these judicial circuits — home to nearly half of Indiana's nonwhite residents, including two-thirds of its Black residents — can only vote on whether to retain state judges who are otherwise selected by a judicial nominating committee and appointed by the governor. The state first implemented the system in Lake County in 1973.

Indiana's other 89 counties, by contrast, enjoy open Superior Court elections — though a nominating committee also plays a role in choosing candidates in the state's Allen County. According to an affidavit from the Indiana Secretary of State's chief legal counsel Jerold Bonnet, such disparate rules were enacted to overcome Indiana attorneys' concerns about partisanship in Indiana trial courts.

But Bonnet said another function of the rules is to rein in the political influence of the diverse counties in question.

“A merit selection process is essential in a highly populated and highly diverse jurisdiction like Lake County to provide safeguards for limiting political influence in Lake County superior courts,” Bonnet said in his affidavit.

The city of Hammond and Eduardo Fontanez, a Latino would-be Superior Court judicial candidate, challenged the disparate rules in May 2021 as a violation of the Voting Rights Act of 1965. They sued the state, the Lake County Board of Elections and the Lake County Judicial Nominating Commission in federal court claiming Indiana lawmakers had purposefully disenfranchised voters of color.

Hammond and Fontanez lost that case in the lower court, prompting an appeal with hope for remand. U.S. District Judge Philip Simon noted in his January opinion siding with Indiana that he suspected the plaintiffs were correct that the disparity faced by Lake County voters violated the Voting Rights Act.

Seventh Circuit precedent, he said, forced his hand.

"While I have substantial doubts that the Voting Rights Act isn’t being violated by the differential treatment of Lake County voters, I am bound by controlling authority from the Seventh Circuit that holds otherwise," Simon, a George W. Bush appointee, wrote in January.

On Thursday, the Seventh Circuit's white, conservative Chief U.S. Circuit Judge Diane Sykes, another George W. Bush appointee, seemed annoyed by arguments from Hammond's attorney Bradley Dick, of the Indianapolis law firm Bose McKinney & Evans. He said the more restrictive judicial election rules in three of Indiana's most diverse counties negatively impacted those counties' nonwhite voters.

"I believe the Voting Rights Act absolutely reaches if a state only gives a lesser or abridged voting right. And that's what I would say we have: an abridged voting right," Dick argued, visibly rankling Sykes.

"No, it's a system of choosing judges. It's not an abridged voting right," Sykes shot back. "It's a system of choosing judges that consists of appointment rather than election, with a retention feature that is at the ballot box."

U.S. Circuit Judge John Lee, a Joe Biden appointee and the Seventh Circuit's only Asian American judge, had a different reaction. He was taken aback by how "particularly discriminatory" it seemed for Indiana to maintain more restrictive judicial election rules where a plurality of its people of color live.

"That seems really odd to me, that ... the governor can say, 'Well, in these districts I'm going to appoint, and then they'll be subject to retention, but in the other districts it'll be an open election.' That seems particularly discriminatory," Lee told Indiana's own attorney Katelyn Doering.

Doering didn't pose a positive argument as to why the disparate rules weren't discriminatory; instead, she reiterated that the rules didn't violate the Voting Rights Act as the state understood it.

"Nothing in Section 2 specifically requires that a state decide to hold an election in any instance or not," Doering told Lee.

"For any office," Sykes added to Doering's answer.

Sykes and Lee were joined on the appellate panel by U.S. Circuit Judge Amy St. Eve, a Donald Trump appointee. The judges did not say when they would issue a decision.

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