By J. Randolph Evans
Just 176,627 Georgians elected Justice David Nahmias to the Georgia Supreme Court for a full six-year term. The end result is not so surprising given that he was one of the most qualified candidates for the court in the history of Georgia. Indeed, most lawyers would agree that he is qualified for the United States Supreme Court. His credentials were so impressive that he appeared to be a consensus candidate with bipartisan support.
The reason the number 176,627 is so shocking is that there are 5,853,264 registered voters in Georgia. That means only 3% of registered voters picked one of the seven justices on the Georgia Supreme Court – one of the most important jobs in Georgia.
After all, the Georgia Supreme Court decides cases involving the constitutionality of laws, the death penalty, and felony convictions. It is the highest judicial authority in Georgia. In 2010, it resolved almost 2,000 different matters involving Georgians, and its rulings impact every Georgian.
While only 176,627 voters elected Justice David Nahmias to the Georgia Supreme Court, 1,082,336 actually voted in 2010 against him. How is that possible?
In Georgia, judges (including Georgia Supreme Court Justices) are elected in a non-partisan judicial election on General Election Day. If there are just two candidates, then this system works pretty well and makes sense. After all, it is the day when the greatest number of Georgia voters participate in the election process.
Indeed, in 2010, over two million people voted on General Election Day in the contest for the Georgia Supreme Court. That is a respectable 35% of registered voters (far greater than the meager 3% that eventually decided the race).
The problem was that in 2010 there were three candidates for the Georgia Supreme Court: Justice David Nahmias, Tammy Lynn Adkins, and Matt Wilson. Interestingly, Tammy Lynn Adkins made a point of not campaigning at all.
Justice David Nahmias garnered a whopping 1,007,828 votes on General Election Day (just 37,254 votes short of a majority). That was not enough.
In Georgia, a candidate must receive over 50% of the vote to win. Justice Nahmias received just 48.2% of the vote. Tammy Lynn Adkins came in second place with 35.2% of the vote. That was enough to force a General Election run-off.
Many speculate about how this happened. A large part of the problem is that the average voter has no idea who the judicial candidates are when they walk into the voting booth. As a result, the only information that they have about the judicial candidates are the names (including the order in which they appear) and incumbency. This means that gender (and possibly ethnicity), along with whose name appears first, take on undue significance. Certainly, the results from the 2010 Georgia Supreme Court General Election dispel any idea that the winner is automatically the candidate who raises the most money, works the hardest or who has the best resumé.
Unlike the General Election, run-offs do not draw many voters. In fact, the total number of all votes cast in the run-off election for Georgia Supreme Court was just 263,565 voters. Justice Nahmias won 67% of that number.
It is all so topsy-turvy that it makes the head spin. Over 1 million votes in the General Election is not enough against a candidate who refuses to even campaign, but just over 131,000 votes would have been enough to win one of Georgia’s highest offices.
There are lots of proposals floating around to “fix” this problem. Some folks insist that the best answer is to stop electing judges. That is not going to happen.
More recently, there has been a move to change the date for judicial elections from the General Election to the Primary Election. Basically, judicial elections would be listed on the ballots of both the Democratic Primary and the Republican Primary. If there were a run-off, then the run-off election would appear on both the Democratic Primary run-off ballot and the Republican Primary run-off ballot. This was the way that judicial elections worked until Republicans gained control of the Georgia Legislature.
Unfortunately, this solution skews the election of judges based on which political party is in power. For example, if there is an incumbent Democratic governor (as in 2002), then Republicans will have a contested primary with higher voter turnout and greater impact on judicial elections. If there is an incumbent Republican governor (as in 2006), then Democrats will have a contested primary with a higher voter turnout and greater impact on judicial elections. Basically, the party out of power benefits.
Regardless, the net impact is that a “partisan component” is introduced into judicial elections. If that is okay, then the better answer is to simply make judicial elections partisan. If not, then judicial elections should not be decided in the Primary Election.