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By Marilyn Odendahl

The Indiana Citizen

August 15, 2023

In their fight to overturn Lake County’s judicial selection process, Hammond mayor Thomas McDermott and his co-plaintiffs are claiming “a stunning admission” made in an affidavit by the general counsel for the Indiana Secretary of State shows the intent behind appointing judges is to stifle the voices of minority voters.

The lawsuit – City of Hammond et al. v. Lake County Judicial Nominating Commission, et al., 2:21-cv-00160 – has reached a plateau with all parties having filed motions seeking summary judgment and, on Aug. 10, their responses to their opponents’ motions. They are now waiting on a ruling from the Northern Indiana District Court that could bring an end to the decades-long judicial nominating process in Lake County.

The plaintiffs claim the process for seating judges in Lake County violates the Voting Rights Act of 1965 and the Indiana Constitution by limiting the ability of minorities to choose their judges for superior court. Voters in about 88 Indiana counties are able to cast a ballot for their judges. However, in Lake County where about 42% of the voters are people of color, judges are picked by the governor through merit selection.

Lake County residents are allowed to cast a judicial ballot only when the judges come up for a retention vote.

In their amended complaint filed in December 2021, the plaintiffs assert Lake County residents have “lesser voting rights” because they are not able to participate in a “free and open election” for their judges. Now, they contend statements from an official confirm Indiana intentionally sought to disenfranchise minority voters by imposing merit selection.

Jerold Bonnet, general counsel for the Secretary of State, provided an affidavit which was included in the court filings from the state defendants. In the document, Bonnet outlined the history of merit selection in Lake County and cited a study that indicated Lake County lawyers and judges were “dissatisfied with the partisan election of judges” in that community.

Also, Bonnet stated, “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 have seized upon that statement.

“The State stunningly designates evidence that it intentionally reduced voting rights because the circuit that encompasses Lake County is ‘highly diverse,'” the plaintiffs state in their response. “… That is, the State candidly admits that it has intentionally abridged voting rights based on race.”

The state defendants – the state of Indiana and Secretary of State Diego Morales, in his official capacity – do not address Bonnet’s affidavit but they maintain the selection scheme used in Lake County does not violate the Voting Rights Act because that federal law applies only to elected officials and not to officials who are appointed.

Moreover, citing the U.S. Supreme Court’s 2021 ruling in Brnovich v. Democratic National Committee, the state defendants contend the proper measure is to compare residents in Lake County to each other rather than to residents across Indiana.

“…the only electorate at issue here is the one that votes for Lake County superior court judges, i.e. Lake County registered voters,” the state defendants assert in their response filing. “If Plaintiffs compare their voting opportunities and the openness of the elections to the proper electorate (all Lake County registered voters), all voters have the same opportunities as all others.”

The Lake County Board of Elections, which is also a defendant in this case, has filed its own response to the plaintiffs’ summary judgment motion. The board argues it does not have the power to enable Lake county residents to vote for judges and the harms alleged by the plaintiffs have not been caused by the board’s conduct.

Electoral remedy

To support their argument that the process for selecting judges in Lake County is unlawful, the plaintiffs cite the 2023 ruling from the U.S. Supreme Court that overturned affirmative action.

McDermott and his co-plaintiffs highlight the Supreme Court’s decision in Students for Fair Admissions, Inc. v. Harvard College which ruled the “law in the States shall be the same for the black as well as for the white.”

As for a remedy, the plaintiffs propose the court give the legislature the opportunity to take corrective action either by allowing full elections in all judicial circuits throughout the state or providing only retention votes in all the judicial circuits.  If the legislature does not act, the plaintiffs assert the court could invalidate the retention vote provision, reinstating open elections for superior court judges in Lake County.

“The political processes leading to the election of judges in Indiana are not equally open to the participation of minority residents in Indiana, and minorities in Indiana have less opportunity to elect Superior Court Judges,” the plaintiffs argue in the amended complaint.

They add Lake County voters have no incentive to vote against retention. Even if a judge is voted off the bench, the result will not bring about voters “being able to participate equally in the selection and election of the replacement judge but will instead only result in the (Lake County Judicial Nominating Commission) selecting new nominees and the Governor appointing one to replace the non-retained judge.”

Extreme vote dilution

The Indiana General Assembly first implemented judicial selection in Lake County in 1971. Under this process, the Lake County Judicial Nominating Commission nominates three individuals for a vacancy on the superior court. The governor then fills the seat by appointing one of the nominees.

Nearly 20 years later in 1989, the legislature amended the law to allow Lake County residents to elect the four county division superior court judges. But that provision was repealed in 2011. Currently, all the superior court judges are appointed by the governor and only face the electorate during a retention vote.

The plaintiffs point out that Marion and St. Joseph counties, which have large minority populations, also have their judges appointed through the judicial nominating process. As a result, they say, minorities in the Hoosier state are subjected to “an extreme form of vote dilution.”

“Approximately 66% of black residents in Indiana have abridged voting rights for Superior Court judges,” the plaintiffs state in their amended complaint. “In contrast, approximately 82% of white, non-Hispanic voters in Indiana enjoy full election rights for their Superior Court judges.”

The plaintiffs also claim the judicial selection process violates the Indiana Constitution. They argue the process runs afoul of the state constitution’s requirement that all laws be applied uniformly across the state.

The state defendants counter that the state constitution permits special legislation in circumstances where the characteristics of the locale justify a tailored law.

Lake County, according to the state defendants, has “several unique characteristics” like being the second most populous county in Indiana and having a court system that handles one of the highest caseloads in the state, more than 450,000 cases annually. Moreover, Lake County attorneys and judges have blamed the partisan selection of judges for unequal caseloads among the judges, trial rules inconsistently applied and an “excessive number of cases” sent to other counties.

“Here, the unique characteristics of Lake County necessitated the legislation,” the state defendants argue. “Lake County judges and attorneys had lost faith in the partisan election of their superior court judges. The population as the second most-populated county in the State, together with the high caseloads, linked with that loss of faith required the General Assembly to make a change – which it did.”

The Northern Indiana court has not indicated when it will issue a ruling on the summary judgment motions.