If Justice is not blind...should contributions to judges be?
John Grisham's novel, The Appeal, is attracting a fair amount of attention to how state judicial elections are increasingly flush with financing from contestants at the bar. Justice Sandra Day O'Connor is an emerging spokeswoman for reforms, of which there is a well-researched and lengthy menu to choose from.
Is it possible for a popular novel to deliver a consensus for arcane reform? Maybe. Okay, maybe is a little generous.
Is it conceivable that a simpler approach, like the secret donation booth, might, like Grisham's novel, catch on more quickly? There is an advantage to simple, resonant analogies.
The County Election is a 19th century painting by George Caleb Bingham. Here's the background, from A Brief Illustrated History of Voting by Douglas Jones at the University of Iowa:
The conduct of elections has changed in many ways over the past 200 years. The extent of these changes is nicely illustrated by a comparison of today's voting practices with those illustrated in George Caleb Bingham's painting, The County Election (Figure 1). In addition to being a noteworthy artist, Bingham was a successful politician; this painting shows a polling place on the steps of the courthouse in Saline County, Missouri, in 1846.
In this painting, we see the judge (top center) administering an oath to a voter. The voter (in red) is swearing, with his hand on the bible, that he is entitled to vote and has not already done so. There was no system of voter registration, so this oath and the possibility that the judge or someone else in the vicinity of the polls might recognize him if he came back was all that prevented a voter from voting again and again.
There was no right to a secret ballot; having been sworn in, the voter simply called out his choices to the election clerks who sit on the porch behind the judge tallying the vote. Each clerk has a pollbook in which he writes the voter's name and records his votes; multiple pollbooks were a common defense against clerical error. There are several people in the painting holding paper tickets in their hands. We know that these were not paper ballots because Missouri continued to use voice voting until 1863. In a general election, however, many voters might have wanted to bring their own notes to the polling place.
Campaigning at the polling place was legal and common. The man in blue tipping his hat to the voter immediately behind the man taking the oath is one of the candidates in this election, E. D. Sappington, who lost to Bingham by one vote. He's handing out his calling cards so that people can easily read off his name to vote for him.
Voice votes offer modest protection against fraudulent vote counts: An observer can easily maintain an independent tally of the votes, and since there is no ballot box, it cannot be stuffed. On the other hand, the lack of privacy means that voters are open to bribery and intimidation; an employer can easily demand, for example, that his employees vote as required, and a crook can easily offer to pay a voter if he votes a certain way.
How different is this scene from the judicial campaign fundraisers that Justice O'Connor decries? Fortunately, the solution need not be too different either.
The secret ballot is an innovation of Australian democracy, imported to America later in the nineteenth century, in response to problems illustrated in Bingham's painting and, more recently, in scenes from Martin Scorsese's Gangs of New York.
Might the secret donation booth, imagined initially for federal elections, offer a path away from state judicial elections that have become as blind to money as...a character in a Scorsese film?
