this morning common cause versus as members of individual members i think it's a state of indiana vote in the context of marin county judicial elections but as the supreme court held in the lopez torres case voters have no rights to a contested election what is more the supreme court has affirmed that that is political parties may be limited to fewer nominations than at large seats in at large elections and no previous court besides the district court below as hell didn't voters have the right to vote for a preferred party to sweep in at large elections so we don't have any precedent for the sort of meaningful right to vote right to a meaningful vote that the plaintiffs are invoking in this case and that the district court for its the first place to start of course is this idea about how large elections multi member districts which will this court in the supreme court of acknowledged are not per se unconstitutional they are permitted mr fyshe you would have knowledge as is probably unique system in the united states is it not i don't think any of us have been able to find anything quite like it your honor in the us to appear on the ballot anyone can and can ask to have where there is a well i know it goes to the general election i'm talking about an issue primarily i understand there's a there's a slating process in marion county where the major parties come together for a slating convention and those who are convention right and so those who are slating thing well there is i think i know you don't want to call honestly well no of course not but now i mean i think you know there is there is some good need to put up with ari does it cover the cost of the election cover the cost of the system that's i think that's the point but you know that is nothing that has even directly been challenged here i mean what's been challenged is not the process of nominating candidates but the process of having an election where as destructing in the mary for mary city county council for example beyond that i think the point is to have a balanced bench in the aggregate so that those who are coming before the courts know they have a you know a balanced chance of drawing either a republican democrat or an independent or libertarian beyond that to the court itself the way it manages itself is balanced you have an executive committee that has to know more than two from each party and the chairmanship rotates from one party to the next or if there's a third party they would be included as well so the minute the actual manager of the court depends on this system the sixty civil divisions the criminal division roughly balance not quite precise but roughly balance between the two parties so again if you're on the civil docket or the criminal docket you have an or at least that slated election that's right that's right you go through the same process and there are circumstances where the parties to perform be gate keeping function and they haven't restated incumbents it does happen but in but with a response of just groaners question isn't the same concern that you're looking at are people who have an obligation or deference to the party which put them where they got well look i think there are many ways one could go about trying to ensure judicial independence and trying to balance the idea of judicial independence with accountability and public accountability there are you know many different jurisdictions try many different methods there is no one that is constitutional that excludes the others there may be other ways to do it and there are strengths and weaknesses for each system like a point appointment merit selection that's one way to go about it nonpartisan elections is also some ways we go about direct partisan contests i think the to legislat tile to examine each jurisdiction and come up with what it thinks is the best solution given whatever the dynamic is for that locale well is it possible that there have not been any independent candidates on the ballot  since the partisan valance statute took effect because those candidates see anything more preordained election run by the parties where their chance for success  even lower if it exists at all well if that's what they're view then that's not a function of this statute let me explain because each major party nominates only you know for half the seats if you're an independent and you go out and get your two percent of the signatures which is roughly between three and five thousand signatures in any given cycle and you want to run a targeted election you don't have to run against both parties you only have to run against one party you can focus and concentrate your efforts on one side and surprising against bill that is a much better playing field for the independents and for the third parties than a system that permits both major parties to sweep all the seats a well i don't think they're supposed to have been you know they haven't shown up well that i don't think i just don't think there's a public support i mean if i don't think we can infer anything else if there is a public support for independent candidates speaking of the public  the election commission as well because it seems to me that judges are responsible for upholding the law and you know we're not supposed to be worrying about placating the public i think any properly constituted judiciary would have that expectation but we know from the supreme court's decision in a variety of cases that that does not negate judicial elections partisan nonpartisan or otherwise once we have accounted for that that expectation of judges and permitted elections to for judges to occur anyway i don't think that there's any further implication for this for this law we have a we have the parties performing very porton gatekeeping functions we have the opportunity for independents and third party candidates a reasonable opportunity to be on the ballot if they have public support to actually target one party or the other this is a much better system i think for actually hoping for some public accountability then if that's just the parties and you have to run against both both parties trying to trying to fight it out for all the seats and what about the others who can't vote in a primary are they able that any input into judicial selection in marion county of course they may recruit and support independent candidates or third party candidates that's the system that we have and that is edge always been sufficient from the supreme court's point of view when it comes to this idea of a meaningful and effective vote the idea is  sufficient third party store versus prout the that line of cases they're asking for the minor parties is there sufficient access there's no challenge here to the access points for the independence of the third part now we do have some precedents that are helpful here we've got the available and so you had you know functionally the same kind of system you'd have as many seats perhaps but it was there maybe four seats that large a party could nominee to those courts upheld this those systems in the supreme court in  was you don't have the right to come in as a major political party and sweep all the seats but none of those other cases involving involve the election of judges carets correct that's correct that's why i'm reluctant to say they're on a force because there is that significant distinction so then i wonder why if the the goal is to elect fair and impartial individuals to serve as judges in this scenario why is this policy in place to in effect try to show partisan b i mean if they had this seems to be the objective here why is partisan balance yeah with regard to the judiciary in marion county the goal well i think the a couple of responses number one is you have a tradition in indiana you know different judicial philosophy in the bring that to the bench and i think that's probably the most important distinction between the two sets of candidates it's not just they not also bring to the bench the fact that they're very beholden to the political party that complete control over their electoral well if that's true there's no distinction between that commitment here in a commitment in a situation where both parties can sweep all the seats there it just has no bearing that's the only thing that's in question we're not facing a challenge to the slate and primary process where all of that accountability of to party comes in we're talking about whether coming out of that system one party or the other can take you know winner take all we had that situation in  where the republicans took all the seats in the one nine hundred seventy four in wake of watergate for the democrats to call us we don't want that kind of instability we want to have some sense of stability some sense of of balance based on the contributions of each of the major parties their election results it right the shift the shifting back and forth the sweeping out of all the judges bringing in a new set of judges the idea that the courts then of there's going to be a people that there is a an impact on the on the management and on the decision making process and this is not about in many respects i think it's fair to step back and say this is not about bringing in an entirely new view of the government this is about supposed to be about law again as in terms of the day i heard i'm sorry are the terms stay or the six year terms i guess never ends up every six years right there is not a sweep well but it's a pretty dramatic shift if you have one party versus versus the other you're a third every election roughly roughly  i don't think they're quite even in terms of the staggering but ye so i'm i'm going back and can because it seems to me that indiana they have set up a judicial election system that is so heavily dominated by the democratic and republican  chances are better than anywhere else but then you think that where all this independence i'm talking about in terms of mathematics i'm talking about in terms of how you go get your votes and build your coalitions and i'm talking about reality but the reality is it's no worse in marion county than anywhere else and saying that one party or the other can sweep all the seats isn't going to change whatever perception independents have of their chances well of course it is of course it is  independent and i know that you know you've got the democrats you've got the republicans where am i well if you are in the marion county system you have a position where you can target no it's a question of building support if it's a question really supporting targeting one side or the other versus having to compete against both parties you don't have to compete against both parties whereas if you go to you know hamilton county for example or  and as a voter you have the ability to go out and if you're not a lawyer or you're not interested in becoming a judge you can recruit and support independent candidates and you are a much better chance in the system of the what if one party can sweep all the seats because then you have to run against b may please the court the stack you hear applied design produces elections i lection day where there is no electoral choice in verdict the court stressed that the right to vote is the right to participate in electoral process that is structured to maintain the integrity of the democratic system this statute here is not designed to maintain the integrity of the democratic system it's not designed to create a meaningful vote we've been discussing the court has been discussing the role of independents as was noted an independent is not someone who wants necessarily to vote for a free candidate an independent who is someone who wants the ability to weigh the merits of a democrat or republican and vote based on merit not based on party affiliation when an independent walks into the voting booth in marin county on election day if there are sixteen judges running what the independent will see is something that says here are sixteen names for sixteen positions that is not the democratic system and the rationale is that the state proffers do not satisfy any remember we're talking about the right to folk here and the supreme court has been quite clear that there is a sliding scale but even at the low end at the low end that the rationales here have to be supported by relevant and legitimate state interest sufficiently weighty to justify the limitation and what are the state's interest don't want anyone to lose the state has made a choice to have an elective system and if you want to call an incumbent losing instability that instability is a feature of the electoral process now it is true that there is no constitutional right to a contested election that is of course true when and if the election is uncontested because independents choose not to run that's not the fault of the statute right there is no right to contested election however there is a right to have a statute that is structured to allow for a viewing for a vote this structure this statute is structured to state assent to achieve partisan balance i designed to do exactly what it is done in every election since it went into effect in two thousand and six to give you absolutely no choice that is not the lopez torah situation where you had incumbents running unopposed because they were in safe districts that is private choice this is the decision of the legislature to give to the parties the power to designate who are the judge judges and the electorate is left completely in the dark it's it's a unique system but it's every dequeue a system and i politics are characterizing it that way but when you vote when you walk in the voting booth and you realize that as long as the judge votes for himself or herself every single person in marin county can vote against that judge or vote for that judge can't vote against and that judge will still win so the question is what justifies such a unique system and there simply are not justification for the argument is we need to balance the fuse and philosophies of the court why would argue as the court noted that when you're in a court and you're looking for partiality you're focused on the judge you're not concerned about what the political affiliation is of the other judges it's not rational to assume there's a republican or  democratic way of being a trial judge and this is not an at large political body where there is a need in that as in the city council in other cases mr fisher cited where there's a perceived need to let a constituency be heard judges don't have constituencies and the second reason the state gives is that we need to guard against the feelings are the fear of partiality as the court noted given the importance of being slate and the in significance of the vote if i am a republican and i before democratic judge i'm going to know that there's absolutely nothing that i did to elect that judge and there's nothing i can do to i don't like that judge i can gather every republican in marin county to not vote for a get for that judge he will continue or she will continue to be a judge that's going to heighten concerns of partiality now you and i both were you in your release and i see minutes ago this but what about the fact that the supreme court has said that a court must focus on the election requirements themselves and not the manner in which political actors function under that's required yes and that and i want us to look at the election requirements how is this statute set up this statutes tells the world that there's two selections sixteen and twenty i'll use a sixty for example it tells the world ten years that there are sixteen judges running for election in marin county each party nominates eight the law the case the statute is struck early established to give no voice at the time of the election yes is it possible for third parties to get on the ballot yes it's possible however the supreme court in williams or says rhodes look at the history of third parties and and the history here is that since  elections when the big third party candidates there's been one when there's more than one and given that we're dealing with elections with sixteen or twenty positions adding one person does not seriously change the burden on the right to vote but it does support the state's position that it can be done yes but that doesn't answer the question about the independent your honor the independent who vote right walks in the voting booth and has had no say in the democrats and republicans who are definitely going to win obviously the first party candidates when they ran in those two occasions for that finished in distant positions that third party candidate received that independent candidate for excuse me who wants to vote for a democrat republican who wants their vote to matter is told it makes no difference because you did not participate in the primary you did not participate in slating moreover the government in their brief that age twenty nine cites a trial document number fifty eight at three and four in which they said not endorse candidates sometimes prevail and want to be elected in the general election and you agree with that have been very limited situations where candidates who were not slated by the party nevertheless prevailed in the primary that's very but it says general no no no no i'm not third parties have run this is an extraordinary statute this is a statute so extraordinary that as the district court noted the court felt comfortable two months before the election in announcing publicly assignments that would begin after the election and of course they felt comfortable doing that because the election was a foregone conclusion everyone knew it was going to win therefore the the court felt no problem stating that people who are still lawyers and not yet judges had not yet been quote unquote elected would occupy these course we can't have that at the same time say that we have a system that is advancing democracy we in how are you defining this meaningful vote term that you use your presentation of the state argues that you've provided no definition into the record well your honor there is no definition because when we look at at burdekin anderson we're dealing with a sliding scale i think burdick noted the right to vote must mean that you have a chance that the system is structured so that you have a potential voice what does that mean could there be a lections like those cited in those cases for hundred seventy nine nine hundred sixty in the states brief where at large candidates were guaranteed a seat or perhaps it could be if given the current law that burger king anderson tells us if there is justification that's why this case really is about justification and the justifications that the state gives certainly do not support this highly highly unusual unique system of what i would call an election but it's not an election it's a coronation and we can't have a system where you walk in the voting booth and you're not given any choice whatsoever that burns not only independent it does burden the ability of a democrat or republican to elect more than half of the positions do they have an absolute right to do that no but if that vote if that ability to actually pick who you want to represent you will be judges is a burden that has to be justification and the justification is offered by the state simply do not happen there and for well you don't get into the partisan or the balancing test under andersen and subsequent cases until you can identify the right that's at stake and mr falk just said we can't identify the right that is at stake you don't simply come in and balance to we'll you know what what has the legislature achieved versus one of the drawbacks you have to look at the right identify precisely come to grips with its contours and then decide if there is a balancing to be had there is nothing here we look at different dimensions is there a right to contested election no is there a right to a single member district election no we can do you can do at large is there a right for a party to be able to vote for i'm sorry for a voter to be able to vote for it's favorite party to sweep all the seats no we don't have anything that would somehow be one of the qualities of the of the write to mr focus seeking to to achieve here now he talked a little bit about williams versus rhodes and looking at the history of third party  independent candidates there well that was because that was a that was about ballot access that that's not an issue here and here i think we take as a given that the ballot access for third parties and independents is is constitutionally sufficient indeed this court election there are opportunities for independents to go out and recruit people that they agree with to run whether they run as independents or as third party candidates and there's no right i think furthermore it's worth noting to have a particular name or or partisan label on a ballot next to a favored candidate and that's the other kind of vein of supreme court precedents that we see where you know the idea that you can say well i want so and so to beyond about with such and such a label it just doesn't exist and i think that that's the other thing that the court will end up having to embrace if it will for for common cause this idea that well you know there are perhaps candidates then and it's with favor and if they want to put them on the ballot and have the democrat or republican label that's that's their entitlement that's the supreme court said that's not a particular right is part of the right to vote so i think that the right that that mr falk is seeking to vindicate it really fall short in any way way and any measure that you look at in your reply frustration with a system that in their view favors the two major parties and they see perhaps see this as a way to get out from under a system that where the republicans the democrats seem you know to to dominate but if that's what they're interested in i think our point is if that's what they're interested in that isn't going to be solved by permitting one party or the or the other to sweep all the seats it's just going to be exacerbated this is a system where as a independent or a third party well if you had a point system it would naturally naturally of course but i don't think they're claiming there's a constitutional right to america's lecturing or or or appointment system i've been recommended by a number of excluding the supreme court itself or at least members and it is a system that succeeds fantastically on many levels your honor mind marin county is unique in a number of ways you also have a township judges rights well we have i'm trying to think if we've done away should be taken under advisement and we move to the fourth case