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March 29, 2015

EDITORIAL: Judicial Elections Make It Impossible for Alabama Judges to Protect Individual Rights

By Billy Corriher

Alabama is the only state where the high court has defied a federal court to offer marriage licenses to same-sex couples. It is also the only state in which judges frequently override jury verdicts of life imprisonment to impose death sentences on convicts. It has become increasingly clear that what is happening in Alabama is the direct result of judicial elections.

With the exception of Bolivia, the United States is the only other country in the world that elects its judges. This system ensures that judges are accountable to their constituents, but it also means that judges will face political pressure to rule in ways that please a majority of voters. A recent poll showed that only 32 percent of Alabama’s population supports marriage equality, and the state’s residents ardently support the death penalty. Alabama judges are keenly aware of these facts.

In 2013, U.S. Supreme Court Justice Sonia Sotomayor said that Alabama judges are overriding jury sentences to impose the death penalty because they “appear to have succumbed to electoral pressures.” Adam Liptak of The New York Times recently wrote that the Court could soon review Alabama’s system of judicial override in capital sentencing.

The U.S. Supreme Court may also have something to say about the Alabama Supreme Court’s recent defiance of a federal court’s authority to order marriage equality sometime this spring. The Alabama high court’s opinion is a glimpse into the narrow worldview of the American conservatives who think they are losing their country as historically marginalized groups gain equal rights. The Alabama high court’s opinion is obsessed with tradition and cites several descriptions of marriage from the 19th century.

Many have compared the court’s stance on marriage equality to Alabama officials’ historical resistance to federal court orders in civil rights cases. Much like former Alabama Gov. George Wallace defying desegregation orders, the six Alabama justices who signed the opinion cannot possibly think that their views of the U.S. Constitution will ultimately prevail. The Alabama high court even seems to presume that the U.S. Supreme Court will rule in favor of marriage equality, reacting with preemptive criticism that builds on the Court’s 2013 decision striking down the federal Defense of Marriage Act, or DOMA.

Given the inevitability of marriage equality, the only explanations for the Alabama justices’ decision to pick a losing fight are electoral pressures or personal homophobia. Like 37 other states, Alabama elects its high court justices, and these elections pressure judges to rule in a way that pleases their constituents. More than 80 percent of Alabama voters ratified the state’s anti-marriage equality amendment in 2006. The state’s chief justice, Roy Moore, was reelected in 2012 with a platform that included calling marriage equality “the ultimate destruction of our country.”

Chief Justice Moore was actually kicked off the bench in 2003 for defying a federal court order to respect the separation of church and state. He became a hero to many of his constituents because he resisted the authority of federal courts to protect the rights of non-Christian litigants in his courtroom. Last year, Chief Justice Moore asserted that the First Amendment’s freedom of religion did not protect non-Christians—a ridiculous claim he later retracted. Given the political environment of Alabama, it is not surprising that the high court chose to defy federal judicial authority over marriage.

An elected judge in Alabama also defied the U.S. Supreme Court’s 1967 ruling in Loving v. Virginia, which struck down bans on interracial marriage. The state’s judiciary resisted other federal court rulings that dismantled Alabama’s system of legal segregation.

The Alabama Supreme Court spent much of its recent anti-marriage equality opinion extolling the virtues of marriage and the benefits that flow to society from a union between a man and a woman. But the court stumbled badly in explaining why the same benefits would not flow from same-sex marriages. The court claims that marriage equality and the “traditional” definition of marriage are “mutually exclusive,” and it absurdly claims that, “Offering marriage solely to heterosexuals indisputably serves as a tool to prevent out-of-wedlock pregnancies.”

If the nonsensical resistance to marriage equality does not provide enough reason to ditch Alabama’s judicial elections, the issue of judicial override in capital cases is of equally grave concern, quite literally a matter of life or death. A number of studies have uncovered evidence of politics influencing capital sentencing in Alabama. The Equal Justice Initiative found that the percentage of death sentences handed down by judges overriding jury sentences “often is elevated in election years.” Even when juries in Alabama sentence a convict to life without parole, judges often disregard those decisions in favor of the ultimate punishment. These judges are campaigning for re-election on a platform of being tough on crime and are imposing death sentences to prove it. Given that most people convicted in Alabama courts are black, this approach harkens back to the reprehensible days of Jim Crow.

It was an elected Alabama Supreme Court that upheld the convictions of the Scottsboro Nine in a racially charged case less than a century ago, before the U.S. Supreme Court overturned its decision. An elected Alabama Supreme Court also upheld the state’s post-Civil War peonage system, which was the subject of Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II, a book by Pulitzer Prize-winning writer Douglas Blackmon. The U.S. Supreme Court ruled in 1911 that the system was unconstitutional, but Blackmon’s book documents how the system continued for decades in many states.

Today, judges and special interest groups are exploiting voters’ fear of crime—which studies show that most Americans associate with black males—to influence who sits on Alabama courts. Instead of mobs lynching suspected criminals, the United States have judges seeking to be elected on a platform of state-sanctioned death and denying the rights of lesbian, gay, bisexual, and transgender, or LGBT, couples.

Simply put, Alabama’s judicial elections have made it impossible for litigants to expect justice if they are politically powerless or seen as different from the majority of citizens. Litigants who are not popular with a majority of voters cannot expect elected judges to risk their political futures by ruling in their favor. Clearly, the Alabama justices must think that picking a losing fight with federal courts over marriage equality is actually a winning platform.

The federal judge who ordered marriage equality in Alabama fortunately does not have to worry about whether her ruling pleases the state’s voters. Federal judges, once on the bench, are insulated from political pressure, allowing them to be impartial and disregard everything except the law and the facts of a case. This freedom from electoral pressure allows them to strike down laws—even if they are popular—that violate the U.S. Constitution. However, in Alabama, justice too often takes a back seat to political expediency.

No American should face discrimination because of their skin color or because of whom they love. Whether the individuals in court are black criminal defendants, interracial couples 50 years ago, or same-sex couples today, too many citizens of Alabama are being robbed of their rights by elected judges wishing to please their constituents. If justice—the capstone of our democracy—is to prevail, the courts must protect American constitutional rights, even in the face of political pressure from a privileged majority.

Billy Corriher is the Director of Research for Legal Progress at the Center for American Progress.

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