GOP Primary to Decide Who Sits on Alabama High Court

(CN) – As Alabama voters head to the polls on Super Tuesday to choose candidates up and down the ticket, those filling out Republican ballots will decide who will fill a seat on the Alabama Supreme Court.

Two seats on the high court are up for reelection this year and the Democratic Party did not qualify a judge for either position. And while one judge is running unopposed, Justice Brad Mendheim, the race for the second seat could have implications for the court’s future.

The election comes at a time when a federal judge recently determined the way Alabama elects its judges – through statewide, partisan elections – does not violate the Voting Rights Act.

Will voters pick the newcomer, state Senator Cam Ward? The lawmaker who led the Alabama Senate Judiciary Committee for 10 years said he’ll bring an understanding of the legislature to the job so the two branches could work together more smoothly.

Or will Alabamians stay with incumbent Justice Greg Shaw? The judge who spent 12 years on the bench and most of his legal career in the state appellate court system says he will help pass along institutional memory to a court filling with fresh faces.

The effect of the Alabama Supreme Court’s decisions is far-ranging. For instance, last June the high court heard oral arguments and in December decided that Alabama courts are a proper venue to hear lawsuits brought by two cities alleging rug manufacturers in Georgia contaminated the river bringing them their drinking water. The justices are currently deliberating over another case with implications over the interpretation of the ethics statues governing public servants across the state.

Judicial elections are different than the typical race for a lawmaker. Ethics rules forbid Alabama candidates from talking about past and future decisions, for instance.

Shaw said a stable and consistent judicial system is key to attracting business to a state. He’s seeking a third term because four new justices have filled out the bench over the last few years.

“I have very specific conservative beliefs about various things like the doctrine of the separation of powers, stare decisis, or statutory construction, and I feel like my knowledge in those areas is something that I can pass along to the younger justices and judges so that we have and keep predictability and stability in the Alabama Supreme Court,” he said in a phone interview.

Shaw, when not working through decisions, keeps a hobby farm with pigmy goats and bees. He’s a journeyman beekeeper.

In a commercial released Feb. 17, he’s shown hauling hay and firing an over-under shotgun while the ad describes him as “Trump tough.”

“After we are elected, there can be no more politics involved in our decision making,” Shaw said. “It has to be based solely on the law and we have to not inject our personal opinions. That is a difficult thing to do and you have to have the character to do it. And I think that’s part of the reference to Trump, to being Trump tough.”

Shaw began his legal career in the appellate courts as a lawyer supporting the late Justice Janie Shores, the first woman to serve on the Alabama Supreme Court.

Meanwhile, Senator Ward is trying to bring a fresh perspective to the high court. The self-identified strict constructionist vowed to leave his law-making days behind but believes a background working in the Senate would help him on the bench.

“In Alabama, we have a very high fee-based system. … I hate to say it but sometimes it’s a pay-to-play system, which I think is wrong but I think there’s a reason for that and there’s a gap in the dialogue between the legislative and judicial branch of government,” Ward said in a phone call.

When he’s not working, Ward exercises – jogging — and reads historical nonfiction. He’s currently working through a biography of former Justice Sandra Day O’Connor.

Mendheim did not respond to a request for comment.

In September 2016, the Alabama State Conference of the NAACP challenged the way the state holds appellate judicial elections. The Alabama Supreme Court, it pointed out, was made up of white Republicans.

The statewide election in a state rife with racially polarized voting did not give black Alabamians the opportunity to choose a judge to all three of the state appellate courts, the Alabama NAACP argued.

But at the beginning of February, U.S. District Judge W. Keith Watkins disagreed. The election of Democrat Doug Jones – considered one of the most vulnerable U.S. senators up for reelection this year – showed that it was possible for a black-preferred candidate to win statewide, the George W. Bush appointee noted.

The system the state had in place for about 150 years was going to stay, Watkins decided. Furthermore, he wrote that the makeup of the appellate courts was more attributable to a slow decline in support of the Democratic Party in Alabama.

The Alabama Democratic Party did not return several requests for comment.

James Blacksher, an attorney that helped bring the suit challenging the constitutionality of the voting system, said black and Latino people with civil rights claims may turn to federal courts in Alabama because of a perceived bias in the state court system created by a “white voting majority.”

“The most important thing to note is that under the current election system, it is unlikely that any civil rights claims will be filed in state court,” Blacksher said in a phone interview.

The Alabama NAACP has 30 days from the Feb. 5 date of the decision to appeal.

When asked about the federal case, Shaw said he disagreed with the NAACP’s proposal to create districts that each elect a justice to the appellate courts, which he said would place pressure on judges to skew decisions in favor of the district that placed them on the bench.

“We don’t represent a constituency. We represent the law,” he said.

When asked about the system to choose judges, Ward said the question has been debated in Alabama since the 1990s. He added political campaigns mixed with politics mixed with judicial elections could be a recipe for some to question the impartiality of the courts.

“No, I don’t think it’s an ideal system,” Ward said. “I think we could do better. But it’s the system we’re under right now.”

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