By Marilyn Odendahl

The Indiana Citizen

April 2, 2024

In its fight to let Lake County voters directly elect their superior court judges, the city of Hammond has turned to the 7th U.S. Circuit Court of Appeals to challenge the retention process and is citing the federal district  court judge’s own observation that judicial elections have been restricted in that county because of “the significant presence of racial minorities.”

The city of Hammond and a handful of voters, including Hammond Mayor Tom McDermott and state Sen. Lonnie Randolph, D-East Chicago, filed their appeal brief on March 11 in City of Hammond, et al. v. Lake County Judicial Nominating Commission, et al., 24-1125.  They asserted the state is violating the Voting Rights Act of 1965, and the Indiana Constitution, in part, because Lake County voters are given the “lesser voting rights” of only being able to retain their superior court judges who have previously been appointed by the governor from a list of candidates compiled by a Judicial Nominating Commission.

By comparison, voters in the state’s majority-white counties get to elect their superior court judges.

“If the voters vote not to retain the judge, then the governor would appoint a new judge to that court,” the plaintiffs said in their brief. “A successful vote not to retain a judge results in a then unknown person later filling that position.”

The state defendants, which include Secretary of State Diego Morales and the state of Indiana, have until May 10 to file their response brief.

Key to the case is the state’s apparent admission that merit selection has been implemented in Lake, Marion and St. Joseph counties because of their large minority populations. In an affidavit, Jerold Bonnet, general counsel for the Indiana Secretary of State, said “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.”

The plaintiffs argued that in this “stunning admission,” the state discloses the voting rights in Lake County have been limited on account of race, which is a violation of the Voting Rights Act.

Judge Philip Simon of the U.S. District Court for Northern Indiana agreed with the plaintiffs.

“Let’s not beat around the bush: the reference to ‘diversity’ is a not so subtle reference to race,” Simon wrote his January 2024 order. “The State thus appears to acknowledge that the ‘diversity’ of Lake County, meaning the significant presence of racial minorities among its electorate, is a reason that superior court judges are not chosen by election but by a merit selection process instead.”

Relying on precedent that limited the VRA

Nevertheless, the district court ruled in favor of the defendants, citing to the 2018 Quinn v. Illinois decision from the 7th Circuit Court.

That case challenged the Chicago mayor’s power to appoint members to the city’s board of education with Black and Latino citizens arguing they were being deprived of their right to vote since school boards in other parts of the state were elected by the local residents. The 7th Circuit found the selection process did not violate Section 2 of the Voting Rights Act because every voter in Chicago – not just minority voters – was being impacted equally.

Even while he said he had to follow 7th Circuit precedent, Judge Simon called the Quinn ruling “unsatisfying,” and noted several shortcomings in the decision. He was particularly bewildered by the 7th Circuit limiting its analysis to just Chicago, rather than looking across the entire state for how school board members were chosen.

“In a situation that involves a state judicial office, whose officers are paid by the state, who collect a state pension upon retirement and whose positions are a creation of state law, I’m at a loss to see why the appropriate comparison isn’t the State’s entire voting system,” Simon wrote.

The Hammond plaintiffs argued Quinn does not apply because their case involves state superior courts which have statewide jurisdiction unlike a school board. Hoosiers can be called into any superior court across Indiana but, the plaintiffs said, the right to elect the superior court judges is not equal across the state.

To bolster their argument, the plaintiffs pointed to the 2021 Brnovich v. Democratic National Committee from the U.S. Supreme Court which, ironically, has been largely viewed as constraining the Voting Rights Act. They note the Hammond case appears to be “the first time that a court has been called upon to apply the Brnovich factors” to the different voting procedures a state has enacted for trial court judges.

In Brnovich, a 6-3 Supreme Court majority found two Arizona laws – one that required ballots cast in the wrong precinct to be discarded and the other that banned the delivery of another person’s ballot except by the voter’s family member or caregiver – did not violate the Voting Rights Act. However, the majority also outlined the circumstances in which a state voting law or requirement could run afoul of Section 2 of the Voting Rights Act.

The plaintiffs in Hammond said their case falls under Brnovich because the Supreme Court’s ruling dictates that a court “must consider the opportunities provided by a State’s entire system of voting.” Looking at the statewide system, the plaintiffs argued that the retention vote scheme does violate Section 2 of the Voting Rights Act, as defined by Brnovich, because of the “outsized impact on minority voters.”

About 50 years ago, “all Indiana residents elected all judges,” the Hammond plaintiffs said in their appellate brief. Then, in the early 1970s, the Indiana legislature implemented a retention voting system in Lake and St. Joseph counties, after those counties saw an increase in their minority populations.

According to demographic statistics cited by the plaintiffs, 66% of Indiana’s Black voting-age residents live in Lake, Marion or St. Joseph counties, which only allow for retention voting. Conversely, 80% of Indiana’s white voting-age residents live in the other 89 judicial districts, where they are allowed to vote for their judges in all elections.

“Retention votes for superior court judges in Lake County do not dilute minority votes. Instead, it abridges the right to vote, giving voters in Lake County ‘less opportunity than other members of the electorate to participate in the political process,’ because Lake County residents get only an up or down retention vote on superior judges they did not choose,” the plaintiffs said, citing to U.S. Code Title 52, “while voters in the vast majority if Indiana’s judicial circuits get to vote in general elections for a specific judge of their choice.”

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and, and worked as a planner for other newspapers, including the Louisville Courier Journal.

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