The Unpredictable Outcomes Of Judicial Races

Nov 22, 2022 at 3:21 pm
Kentucky Supreme Court

If there’s one takeaway from the 2022 judicial races in Jefferson County, it’s that women will always win judicial races against men. It’s well established that a candidate’s perceived gender is an important factor in nonpartisan races, and Louisville voters have decided that women make better judges. Simple as that.  

Ah, wait. The low-dollar district court matchup between public defender Anthony Jones and elder law attorney Emily Korfhage Monarch disproves that rule. Jones won by almost 4,000 votes. Okay then, this indicates that people want defense lawyers and other candidates who are dedicated to reforming our criminal legal system. Louisville’s voting population was energized by the Breonna Taylor protests, and they are more engaged than ever in these judicial races, so they’ve done their homework this time. 

Hold on, that’s not it either. Lisa Langford, a former prosecutor, trounced former public defender Justin Brown. Ted Shouse, a high-profile criminal defense lawyer who has been on the front lines of nearly every social justice legal battle in Louisville for more than a decade, suffered a 20,000-vote defeat to a mostly unknown insurance defense lawyer who had the backing of the GOP and the FOP. And the “people’s lawyers” running for Court of Appeals — State Representative McKenzie Cantrell and Tricia Lister — both lost to sitting judges who have gotten plenty of bad press. 

We can at least say that incumbent judges have a major advantage. Oh, except that Tracy Davis beat out Judge Mary Shaw, who was the only incumbent challenged at the Circuit Court level. That must be because Shaw signed the bogus search warrant that led to Breonna Taylor’s death. So voters want judges who are more in touch with social justice — no, no, sorry. We already debunked that one. Fuck! This is hard.  

My law professor brain wants a framework for understanding voters, a formula for winning elections, or at least some stable measure of predictability that could be used in future elections, but no such thing exists. Propose a marker, any marker, to predict voter behavior in this last election, and it can be discarded by the judicial results in Jefferson County. Experience? No. Ethnicity? No. Endorsements? No. Fundraising? Close, but not quite. No single factor, or even combination of factors, yields a satisfactory answer. 

In looking at these results, it might be tempting to conclude that judicial campaigns just don’t matter that much. A candidate could put their name on a ballot, never knock on a single door or put up a single yard sign, kick back, and wait for the results. In fact, it seems like that’s exactly what a few of them did this cycle. Meanwhile, highly recognizable candidates like Shouse and Cantrell campaigned hard and still lost.   

The truth is that party identification is the single most important factor in predicting voter behavior, and when you take that away, we know diddly/squat about what motivates voters. Research on voting behavior is focused almost entirely on high-level elections, and most of that on presidential races. There hasn’t been much in the way of empirical research on nonpartisan races for the last 20 years. 

The best we can do are little glimpses into ways that voters might behave with stylus in hand. In one of the more recent studies on the matter, political scientists Chris Bonneau and Damon Cann theorize that people will sniff out (and sometimes invent) party affiliations where none are listed. That’s fine for highly-informed voters, but most of the people who show up to vote for the top of the ticket won’t know anything about judicial candidates before Election Day. We also know that uninformed voters tend not to vote at all on the down-ballot races. That seems to have been the case in Louisville; 277,343 votes were counted in the mayoral race, and most of the judicial races had less than 200,000. When you start to look at uninformed voters who do vote, that’s where things get fuzzy. Some folks will vote along perceived gender or ethnicity lines, or on general name recognition, but many will simply vote for the name that’s at the top of the ticket. In any event, no published studies offer any helpful explanation for the baffling array of results in Jefferson County this year.  

The lack of meaningful data is troubling. Somewhere around half of all U.S. elections are nonpartisan. In many states, the state supreme court and court of appeals judges will control important aspects of reproductive rights, public education, voter maps and more. District and circuit court judges determine property rights, child custody issues, how full the jails are and honest-to-god-life-and-death matters. And yet we know almost nothing concrete about how candidates in these races might successfully sway voters. 

Given this dearth of knowledge, a candidate in a nonpartisan race has to do… well, whatever it takes. An electoral win becomes an exceedingly complicated calculus that takes a bajillion factors into account. Circuit Judge-elect Julie Kaelin told me: “Endorsements, name recognition, gender, getting out and meeting voters in the community, engaging on social media platforms, etc. are all important factors in the final calculation. A good candidate is cognizant of this, chooses their race wisely, and then works hard to leave nothing to chance.”

Beth Thorpe, a digital strategist who has worked on several judicial campaigns, explains that strategies are more complicated in nonpartisan races because “partisan identification and stance on issues are the main ways the voting public understands who they should vote for. Judicial candidates also sign pledges here to not negatively campaign against their opponent. In partisan races there is often a negative contrast that you push on your opponent. So you are left with a few things, and the absolute biggest is name identification.” That’s where vigorous campaigning comes in. “People seeing the judicial candidate names over and over again matters. Meeting the candidate personally matters. Developing a really good narrative for why the candidate is the right one with videos, graphics and speeches that tell that candidate’s story is absolutely essential for connecting with the voter.” 

Essentially, you’re scrambling to reach as many low-information voters as you can, so you can keep them from casting an arbitrary vote, or not voting at all.

So while the 2022 election results might look like chaos to the casual observer, the answer is not to write off judicial campaigns as ineffective. To the contrary, Thorpe says: “People who volunteer, donate and publicly back candidates as well as organizations who run voter outreach programs in judicial races make a massive difference in outcomes. Running countywide takes a village, and I encourage people to reach out to candidates and see how they can be a part of their campaign.” •

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