With big business backing, GOP revamps appellate courts in Southern states

After a slate of 19 Black women swept judicial elections in Houston in 2018, some Republicans called for a constitutional amendment to end judicial elections. That effort has failed so far, but a new bill in the Texas legislature could slash the number of appellate courts, which include more Democrats now than they have in decades. The state's 14 appellate courts have jurisdiction — sometimes overlapping — in civil and criminal cases appealed from trial courts.

State Sen. Joan Huffman (R) introduced a bill, S.B. 11, that makes small changes to appellate court districts. But voting rights advocates say the bill is a "shell" that will soon be packed with much bigger changes. Lawmakers are expected to include suggestions from Texans for Lawsuit Reform (TLR), a group funded by big business that spends big to back Republican candidates. TLR recently proposed a consolidation plan for the state's appellate judiciary.

Anthony Gutierrez, the head of Common Cause Texas, told Salon that TLR's proposal is driven by a desire to elect more Republican judges. "The political party they don't like is winning too many districts," he said. Gutierrez predicts that after the consolidation "the majority of those court of appeals districts would then become completely controlled by Republicans."

TLR has spent well over $800,000 to back Republican candidates for the Texas Supreme Court, according to FollowTheMoney.org. The candidates backed by TLR in previous elections include Gov. Greg Abbott, a former justice, and Judge Don Willett of the 5th U.S. Circuit Court of Appeals. The group has successfully lobbied for bills that limit lawsuits and helped make it nearly impossible for injured workers or consumers to win in court. TLR has also pushed lawmakers to ban negligence lawsuits over COVID-19 exposure, which other Southern states have already done.

The details of TLR's judicial reform proposal are revealing. The group offers three possible consolidations, and all of them would merge urban counties' courts with those in less populous surrounding counties. TLR even suggests that if lawmakers want to prevent big cities "from dominating the election of justices, it is possible for the legislature to require that one or more [judges] reside in one or more specified counties."

A draft of the seven new court districts was published in news reports, and Stephen Wolf of Daily Kos found that voters in five of the seven districts chose a Republican in the last presidential election. Wolf also found that white people would comprise a majority of the voting-age population in most of the new districts, even though they aren't a majority of the state's voting-age population.

Common Cause Texas has suggested that the proposal could violate the Voting Rights Act (VRA) by reducing the ability of communities of color to elect their preferred candidates. TLR's report discussed how the VRA applies to judicial election districts; it noted that few lawsuits challenging appellate election districts have been successful. 

If introduced, the Texas bill would follow similar moves by other GOP-controlled legislatures to change how judges are chosen. This year, Republicans in Montana and Pennsylvania have tried to create new election districts for their state supreme courts, which include progressive majorities. The North Carolina legislature gerrymandered judicial elections in the city of Charlotte after Black Democrats were elected in 2016, and it slashed the size of the state Court of Appeals to prevent appointments by the Democratic governor. Both laws were challenged in state court and then repealed while the lawsuits were pending.
 
Republican legislators justify S.B. 11 by pointing to problems that come with having 14 appellate courts, and TLR's report specifically ruled out the idea of creating any new appellate courts in Texas. But another GOP-sponsored bill, which Gutierrez claims is the party's backup plan if S.B. 11 fails, would create a new court to hear appeals in some civil cases, including litigation challenging state laws as unconstitutional.

The new appellate court would be elected statewide. Democrats haven't won a statewide race in Texas in decades.

A new court for West Virginia 

West Virginia Gov. Jim Justice (R), who owns a coal company, signed a bill this week to create the state's first intermediate appellate court to review trial court decisions before they reach the state Supreme Court. Next year he'll appoint the court's three judges, who will then face voters in the 2024, 2026, and 2028 elections. 

Critics argued the new court is expensive and unnecessary, given that the number of appeals has dropped precipitously in recent decades. The West Virginia Supreme Court has never suggested that it needed another court to handle appeals. The new court will hear appeals in civil lawsuits, giving it the power to overturn jury verdicts across the state.
 
The bill was opposed by Democrats and some Republicans. Like the Texas bill, the West Virginia proposal was pushed by big business lobbyists. The state's Chamber of Commerce, which has run ads supporting conservative Supreme Court candidates, has promoted the idea of a new appellate court for years.

Danielle Waltz, a lobbyist with the U.S. Chamber of Commerce in Washington, D.C., pushed back against the idea that the new court will be too expensive. "There is no price tag on providing litigants with justice," she said.

The bill will allow Justice to leave an even bigger mark on the state's appellate courts. After a 2018 spending scandal led to the resignation of two state Supreme Court justices, the governor filled the empty seats with two former Republican lawmakers. The legislature tried to impeach the remaining justices. But a temporary state Supreme Court, weighing the case due to the incumbents' conflict of interest, ruled that the impeachment proceedings violated the state constitution. 

Republicans are now considering a constitutional amendment, which would have to be approved by voters, that would overturn this decision. The amendment would prevent courts from intervening in any impeachment proceeding, no matter how problematic the process or how frivolous the charges. 

Julie Archer of West Virginia Citizen Action Group said that courts wouldn't be able to intervene if lawmakers impeached an official on discriminatory grounds, such as their race or sexual orientation. She argued that lawmakers keeping courts out of the impeachment process is like "football players throwing referees out of a game — the results aren't going to be pretty."