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Picking Judges in Marion County: Foretold Result Makes System Unconstitutional, Federal Judge Says

There are many things that make Indianapolis unique, but it is likely that your rundown of what makes our city special does not include the way we elect judges to the Marion Superior Court. The reality, however, is that the method by which individuals ascended to the bench in Marion County on this recent Election Day is not used by any other county in Indiana, and perhaps anywhere else in the nation.

It is now also the subject of a federal lawsuit in which a judge has already ruled that the system is unconstitutional. In an October 9th order, Chief Judge Richard Young of the U.S. District Court for the Southern District of Indiana held that because the system as designed makes the winners a fait accompli by Election Day imposes a severe and impermissible burden on the right to vote.

Here’s how electing judges to the Superior Court works in Marion County, per Indiana law: each political party nominates exactly half of the open judicial positions available for the Marion Superior Court. While as a technical matter, other candidates may appear on the ballot either from minor political parties or as write-in candidates, the reality is that rarely if ever happens, meaning that eight Democrats and eight Republicans are listed for the 16 at-large judgeships. As described by Judge Young, “this results in a system whereby the judicial candidates, who run at large, face no competition in the general election. All each candidate needs to win is one vote.”

Judge Young concluded that this lack of meaningful choice rendered the system unconstitutional:

“(T)he potential for independent and third-party candidates to appear on the ballot does not alleviate the burden imposed by Indiana’s electoral scheme: when a person proceeds to the ballot box on Election Day, he or she must be afforded an opportunity to vote for the judge who will fill Marion Superior Court # 1, the judge who will fill Marion Superior Court # 2, and so forth. Indiana law does not permit this.”

Indiana Attorney General Greg Zoeller has announced that the state will be appealing the ruling, and if the ruling stands, Marion County may have to either implement a system that either allows for a wide-open direct election process or adopt a merit-selection system which consists of commission-based appointments.

I would argue that Marion County’s system has largely removed judges from the normal political process of campaigning, which somewhat preserves their independence as they aren’t pressured to be unnecessarily “tough on crime” in order to score easy votes.  Conversely, the end of the “slating” system pursuant to which candidates essentially buy their way onto the ballot by donating large sums of money to the party which then gives them its seal of approval, could make it easier to remove judges who are perceived as being overly biased in the favor of the state or defense.

The laws governing legal advertising in the state of Indiana require the following statement in any publication of this kind: “THIS IS AN ADVERTISEMENT.” This website is designed for general information only. The information presented at this site should not be construed to be formal legal advice, nor the formation of a lawyer/client relationship.

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