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By Marilyn Odendahl
The Indiana Citizen
August 7, 2024

Lake County residents are getting another day in court, as they continue to push for the ability to directly elect their superior court judges, rather than just having the option to vote for retention of those judges.

Hammond Mayor Thomas McDermott and the other plaintiffs in City of Hammond, et al. v. Lake County Board of Elections, et al., 24-1125, are challenging the retention process used to keep or remove superior court judges in Lake County. The plaintiffs assert Indiana is violating Section 2 of the Voting Rights Act of 1965 by giving residents of heavily minority Lake County “lesser voting rights” than residents of majority white counties who are able to elect the judges they want on the bench.

Although the Northern Indiana District Court agreed with the plaintiffs that the merit selection process used in Lake County likely disenfranchises minority voters, it granted summary judgment to the state defendants. The court said the 7^th U.S. Circuit Court of Appeals issued binding precedent in Quinn v. Illinois, which found no violation of Section 2 of the Voting Rights Act because all the school board members in Chicago were appointed and none of the city’s residents had the option of voting for any of them.

The Lake County plaintiffs appealed the district court’s ruling to the 7^th Circuit in April. Oral arguments before the appellate panel have now been scheduled for 9:30 a.m. (Central time) Sept. 5 at the Everett McKinley Dirksen United States Courthouse in Chicago. The plaintiffs and the state defendants will each have 15 minutes to present their cases.

No advocacy organizations or legal scholars have filed amicus curiae briefs with the court to offer their perspective on this case.

Private right-of-action arguments

Vacancies in the Lake County Superior Court are filled through merit selection. The process is rooted in the laws passed by the Indiana General Assembly during the late 1960s and early 1970s, which provided for judicial appointments in the state’s most heavily populated counties at the time, including Lake County.

Under the current process, the Lake County Judicial Nominating Commission interviews applicants for the court’s open seat and then recommends to the governor three of the applicants. The governor appoints one of the three to the bench.

Periodically, the superior court judges appear on the ballot in Lake County elections, but voters are only asked if the judges should be retained. Any seat that becomes open because a judge has lost the retention vote will be filled by the governor’s appointment.

In their briefs filed with the 7^th Circuit, the plaintiffs and defendants argue over whether the retention process used in Lake County actually violates Section 2 of the Voting Rights Act and over how consequential was a statement by a state official about the reason for merit selection being implemented in “highly diverse” counties.

Also, citing to a November 2023 decision from a split 8^th U.S. Circuit Court of Appeals, the defendants argue the plaintiffs cannot bring a VRA claim because the law does not contain a private right of action. In Arkansas State Conference NAACP et al. v. Arkansas Board of Apportionment, et al., 22-1395, the majority of the circuit court ruled only the U.S. attorney general – and not private citizens or advocacy groups – can enforce Section 2 of the Voting Rights Act.

The defendants quote from the 8^th Circuit decision in noting the VRA is silent on whether private individuals can sue under Section 2. That silence, the defendants assert, does not indicate that Congress intended to create a private right of action.

Blasting the defendants for raising the private right of action issue on appeal when it was never litigated in district court, the plaintiffs claim the argument is “too late and on too thin of a record for this Court to decide such a weighty issue for the first time on appeal.”

The plaintiffs concede the text of Section 2 of the Voting Rights Act does not include a provision giving individuals enforcement power, but they highlight congressional action and court decisions to bolster their argument that private individuals can sue under the VRA.

In particular, the plaintiffs cite to Congress’ 1975 amendment of the Voting Rights Act, which authorized courts to grant relief to private parties in lawsuits brought to protect voting rights, including those covered in Section 2. Also, the plaintiffs point to the 1996 ruling in Morse v. Republican Party of Virginia, where the U.S. Supreme Court majority recognized Section 2 contains a private right of action. Since then, the plaintiffs note, the 5^th, 6^th and 11^th circuit courts have all held Section 2 is privately enforceable.

“Since Morse, ‘scores if not hundreds of cases have proceeded under the assumption that Section 2 provides a private right of action. All the while, Congress has consistently reenacted the VRA without making substantive changes, impliedly affirming the previously unanimous interpretation of Section 2 as creating a private right of action,’” the plaintiffs say, citing the 2023 ruling from the U.S. District Court of Kansas in Coca v. City of Dodge City.

Disputing discriminatory intent

Furthering their arguments made in district court, the state defendants contend the Voting Rights Act does not mandate that voters in different localities have to be able to vote for the same number and type of officeholders. Rather, the voting has to be “equally open” to all “members of the electorate.”

In this case, the defendants argue, the relevant electorate is Lake County where every voter in the county has an equal opportunity to vote for the retention of superior court judges.

“Plaintiffs challenge a merit-selection process that affects every member of the Lake County electorate equally regardless of race or ethnicity,” the defendants say in their brief to the 7^th Circuit. “Minorities may ‘not get to vote for [Lake] County judges, but neither do any other [Lake] County residents.’”

The plaintiffs counter that superior court judges are not local offices but statewide offices. Therefore the Lake County residents are being treated differently than the residents of counties that elect their judiciary.

“State superior court judges sit over courts of general jurisdiction and any resident of any county can be hailed into any state judicial circuit. In such a circumstance, voting on state superior court judges in different manners in different judicial circuits means that influence is not ‘there for everyone to wield,’” the plaintiffs assert, citing Quinn v. Illinois. “A voter in Lake County has less influence on who a state superior court judge is than a voter in Porter County, which shares a border with Lake County, even though a Lake County resident may be forced to litigate in a state superior court in Porter County in front of a judge elected by that Porter County resident.”

The state defendants are also trying to defuse the impact of a comment about the reason for the use of merit selection in Lake as well as St. Joseph and Marion counties. The general counsel for the Indiana secretary of state said in an affidavit the merit selection process was necessary in a “highly diverse jurisdiction like Lake County” to safeguard against political influence in the county’s superior courts.

While the district court agreed with the plaintiffs that the general counsel’s remarks indicate the state is trying to stifle the voices of minority voters, the defendants dispute the plaintiffs’ contention that the individual admitted Indiana limits voting rights based on race.

Moreover the defendants assert the plaintiffs have not presented any evidence that the Indiana legislature adopted merit selection to discriminate against Lake County. The legislature adopted merit selection after an independent study reported “pervasive dissatisfaction” with the Lake county judicial system, identified problems with partisan judicial elections and recommended merit selection to improve the administration of justice, the defendants said.

“As this Court previously observed, moreover, ‘it is hard to imagine’ how someone could provide that the merit-selection system for Lake County was the product of ‘intentional discrimination’ where that system seeks to include minorities,” the defendants argue, citing to the 7^th Circuit’s 1998 ruling in Bradley v. Work.

The plaintiffs point out that the state defendants already defended the affidavit of the general counsel so it cannot now disclaim it. Also, the plaintiffs say, the state has admitted that “’racial backgrounds’ are one reason it maintains lesser voting rights in Lake County, and it cannot avoid the position it took on appeal.”

“The State’s efforts to distance itself from its own evidence from the office of Indiana’s highest election officer are not convincing,” the plaintiffs assert. ”The State admitted it maintains lesser voting rights because Lake County is ‘highly diverse.’ The State violated the VRA.”

Dwight Adams, an editor and writer based in Indianapolis, edited this article. He has been a content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and a planner for other papers, including the Louisville Courier Journal.

The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.