Democrats now hold majorities in half of the state’s 14 appellate courts after taking over 30 seats last week, mostly in metropolitan areas.
The party’s candidates upset entrenched incumbent Republicans and took open seats as well. They won five seats on the currently all-GOP First and Fourteenth Courts of Appeal in Houston, eight seats of 12 (including six incumbent places) on the Fifth Court of Appeals in Dallas, and four on Austin’s GOP-dominated Third Court of Appeals. The appellate courts are the next stop after trial court for civil and criminal cases.
“It will provide a wider field for plaintiffs’ attorneys,” said Joe Longley, president of the State Bar of Texas. Where defendants such as insurance companies currently find a more welcome reception from some of the outgoing jurists, the newer judges “will be broader in allowing plaintiffs to go forward,” Longley predicted.
In particular, more liberal judges may be more likely, in civil suits against companies, to allow broader discovery on appeal – that is, requests by the plaintiffs for information.
“The new flavor is more disposed to uphold a trial judge’s allowance of wider discovery,” Longley said.
For the state’s anti-tort advocates, the swing is a blow.
“We are going to see a huge impact on the litigation environment,” said
Lucy Nashed, a spokeswoman for Texans for Lawsuit Reform, which backed many of the incumbents who were ousted.
“There will be uncertainty in the legal system,” Nashed said. Courts above the appellate level take on relatively few cases, “so for a lot of cases, these courts are the last stop.”
The cases that do make it to the state Supreme Court may also change over the long term, said Mark Jones, a Rice University political scientist.
“This no doubt pushes the judicial system to the left,” Jones said. “But remember the [statewide elected] Supreme Court and the Court of Criminal Appeals stayed Republican. So they will be seeing different cases.”
The 80 appeals justices are elected to six-year terms, with gubernatorial appointments covering midterm vacancies.
Experts say the winning judges can thank Beto O’Rourke, the El Paso Democrat who lost in his bid to unseat U.S. Sen. Ted Cruz.
In getting 48 percent of the statewide vote, O’Rourke inspired Democratic voters to hit the polls, particularly in areas where suburban voters are slowly being pulled into the fold of inner-city Democratic strongholds. Many of those Democrats voted a straight ticket, in which they automatically place votes for all candidates in a single party. In doing so, they incidentally voted for down-ballot candidates, including the appellate court judges.
“In those races, few voters know who the candidates are,” Jones said. “No one outside of friends and family and some attorneys know, and even the attorneys are narrowly focused on their particular courts.”
Texas cities include some of the fastest growing in the country, and the new residents are younger, more likely to hold a college degree and giving some room to Democrats who have been shut out for years. In some cases, formerly Republican-dominated suburban counties saw their margins of victory eroded for the first time.
Even Tarrant County, long a Republican bastion for elected officials, backed O’Rourke, giving him a 4,308-vote margin.
“The Democrats started selling straight-ticket voting this time around, rather than trying to tell them which candidates to vote for,” said Peck Young, a former Democratic consultant and director of the Center for Public Policy and Political Studies at Austin Community College. “Then also, Beto O’Rourke got people voting, people who had never voted before. He created a seismic wave that I haven’t seen since [former Texas Gov.] Ann Richards.”
Young said that Republicans have long had more straight-ticket voters, and would win that vote with 60 percent. This time, that margin closed to around 51 percent, meaning more Democrats simply voted straight ticket.
The judges, he said, “were incidental to that. No one was running around saying ‘We need more Democrats on the appeals courts,’ unless they are directly affected by those courts. And few are.”
Texas is one of 10 states that allow straight-ticket voting, and around 66 percent of voters in the state’s densely populated areas voted that way straight ticket in the past two elections.
Republicans have traditionally voted straight ticket at a higher rate than Democrats in Texas, in 2014 by as much as 18 percent. Last week’s was the first time the straight-ticket ballot has benefitted Democrat in over two decades.
“And judges run without issues for the most part,” Peck said. They can’t tell voters how they would rule on a particular topic, for example.
Records also show the challengers won without raising more money or placing more advertising. The victories, in fact, appear to have come out of nowhere, leaving these crucial courts to take a new direction.
The elections also turned back big money, with large political action committees including those from law firms like Bracewell and Haynes & Boone as well as Texans for Lawsuit Reform and Texas Right to Life backing the losers and the victors scraping by with mostly small donations from their followers in the legal community.
First District Court of Appeals Justice Jane Bland was called “Harris County’s most capable jurists” in a Houston Chronicle endorsement two weeks before the election. The incumbent Republican has held the Place 2 slot since her appointment by Rick Perry in 2003. But Gordon Goodman unseated her despite raising only $6,600 to her $117,502.
In some races, both sides raised and spent more than is usual in judicial elections. Mike Toth was appointed to Travis County’s 3rd Court of Appeals seat in September and raised over $750,000 for his campaign. He lost to Democrat Gisela Triana, who raised another $316,000, for a total of over a $1 million, considered high for such a race.
“I don’t know if it really was the result of straight-ticket voting, and judicial races shouldn’t be partisan in the first place,” said Jeff Dalton, a Democratic strategist in Dallas. Dalton ran the campaigns of several of the judges who won in the 5th Court of Appeals in Dallas.
He noted that the state’s prohibition on straight-ticket voting, passed in 2017, takes effect in 2020, when President Trump will run for reelection.
“Maybe then we’ll be able to see how much impact straight ticket voting had in this one,” Dalton said.
Steve Miller can be reached at [email protected].