Dave Stafford for www.theindianalawyer.com

As Indiana endured the harsh national glare from the Religious Freedom Restoration Act controversy this week, Indianapolis’ pay-to-play, power-sharing system for electing Marion Superior Court judges was on trial in Chicago.

A panel hearing the appeal of a decision that ruled unconstitutional Indianapolis’ slating system for electing judges appeared skeptical of the state’s arguments in favor of the law. Oral arguments Wednesday before the 7th Circuit Court of Appeals may be heard here.

As Indiana Solicitor General Thomas Fisher argued that the statute theoretically gives independent and third-party candidates a greater likelihood of being elected to the bench, a seemingly incredulous Judge Ilana Diamond Rovner replied, “I’m talking about reality.”

Marion County’s judicial election law that ensured Democratic and Republican parties an equal number of judgeships was tossed out in October after a lawsuit was brought by the public-interest group Common Cause. The election law has facilitated a system whereby both parties “slate” those ballot positions with candidates who make five-figure financial contributions to the parties.

Fisher argued the case was wrongly decided. “We don’t have any precedent for the sort of right to a meaningful vote that the plaintiffs have invoked in this case,” Fisher said.

“This is a unique system in the United States, is it not?” Judge Michael S. Kanne asked, after which Fisher said that it appears to be. Fisher explained each party conducts slating conventions to fill their guaranteed judgeships.

“Do those slated then pay a slating fee?” Kanne pressed. “I know you don’t want to call it a slating fee.”

Fisher replied, “There is some need to cover the costs of the election, to cover the cost of the system … I think that’s the point.

“What’s been challenged is not the process of nominating candidates but the process of having an election where, as it happens, for lack of support there are no independent and no third-party candidates and no write-ins,” he said.

Independent voters, Fisher argued, “may recruit and support independent candidates or third-party candidates. That’s the system that we have … and that has always been sufficient from the Supreme Court’s point of view when it comes to a meaningful and effective vote.”

American Civil Liberties of Indiana attorney Ken Falk argued on behalf of Common Cause to affirm the District Court opinion striking down Marion County’s election statute. He said the statute “by design, produces elections on Election Day where there is no electoral choice,” and which entirely shut out independent and third-party voters.

“An independent is not someone necessarily who wants to vote for a fringe candidate; an independent is someone who wants the ability to weigh the merits of a Democrat or a Republican and vote based on merit, not based on party affiliation,” Falk said.

“When an independent walks into a voting booth in Marion County on Election Day, if there are 16 judges running, what the independent will see is something that says here are 16 names for 16 positions,” eight Democrats and eight Republicans. “And the rationales that the state proffers do not satisfy any burden, and remember, we’re talking about the right to vote,” Falk argued.

“It’s a unique system but it’s a ridiculous system,” he said. “When you walk into the voting booth and realize that as long as the judge votes for himself or herself, every single person in Marion County can vote against that judge or not vote for the judge and that judge will still win. … There simply are not justifications.”

Fisher argued that the parties perform an important gate-keeping function in slating candidates who then must win primary elections before being placed on the general election ballot. Rarely do slated candidates lose in primary races.

“There are circumstances where the parties have performed the gate-keeping function and they haven’t slated incumbents,” Fisher said. “It does happen.”

But Kanne worried whether the system might raise concerns “that you’re looking at people who have an obligation of a deference to the party that put them where they got to be.”

Fisher responded there are multiple methods to balance judicial independence with public accountability. “I think the Legislature is entitled to examine each jurisdiction and come up with what it thinks is the best solution given the dynamic for that locale.”

Fisher argued that Indiana also has a tradition of judicial partisan elections, but Kanne noted other larger counties have adopted merit-selection, and he again focused on slating.

“Do (judges) not also bring to the bench the fact that they’re very beholden to the political party that has complete control over their electoral fate?” Kanne asked.

“We’re not facing a challenge to the slating,” Fisher said, raising a possibility of a party sweep of judicial offices in an unrestricted partisan race. He said Republicans swept judicial offices in 1970 and in 1974 Democrats swept in the wake of Watergate.

“We don’t want that kind of instability, we want to have some sense of balance based on the contributions of each of the major parties.”

But Falk argued, “It’s not rational to assume there’s a Republican or a Democratic way of being a trial judge. … “Judges don’t have constituencies.”

He also observed that stability has been built into the system to the point that even before last November’s general election, the Marion Superior Executive Committee made assignments for judges who took office earlier this year.

“The election was a foregone conclusion,” Falk said. “We can’t have that and at the same time say we have a system that is advancing democracy.

“The justifications the state gives certainly do not support this highly unusual, unique election … but it’s not an election, it’s a coronation.”

Along with Kanne and Rovner, the panel included District Judge Theresa L. Springmann, sitting by designation from the U.S. Court for the Northern District of Indiana.

At the outset of Wednesday’s hearing, Kanne noted the greater controversy that had engulfed the Hoosier state. He mused to Fisher, “Indiana’s getting a lot of TV (coverage), but apparently they’re not that interested in your case.”