Democratic male judges may be headed for extinction in Texas. The cause? Voters

Justice Gisela Triana of the 3rd Court of Appeals in Austin won the Democratic primary for Place 8 on the Texas Supreme Court with 72% of the vote.
Justice Gisela Triana of the 3rd Court of Appeals in Austin won the Democratic primary for Place 8 on the Texas Supreme Court with 72% of the vote.
Marjorie Kamys Cotera for The Texas Tribune

In Democratic judicial primaries last Tuesday, Dayna beat David, Jane trounced Jim, and Colleen got more support than John, David and Brennen combined. Is that all there was to it?

Men have dominated Texas courts for decades. Now, in Democratic-controlled areas of the state, they seem headed for extinction.

The corrective for years of gender inequity on the bench has proven rather simple: voters.

Women have disappeared from the high-octane Democratic presidential primary. But in down-ballot, low-information races, Texas Democrats are increasingly, consistently backing women over men. In last week’s Democratic primary, women won more votes than men in all of the roughly 30 gender-split contests for high court, court of appeals and district court, according to results from the Texas Secretary of State. Rarely was it even close.

In urban areas, Democrats typically beat Republicans in the general election. So if Democratic men can’t beat Democratic women in judicial primaries, the bench in Texas cities is likely to become a lot more female. Democratic men won primary races for high court, courts of appeals or district courts only when they were uncontested or facing a male opponent.

Some voters may have chosen women candidates because of their superior qualifications or experience. But experts say it’s likely that many of them just looked at two unfamiliar names and chose the one that sounded like a woman.

“Maybe they knew nothing, maybe they knew that they were both equal, but all things being equal, they went with the woman,” said Elsa Alcala, a former judge on the Texas Court of Criminal Appeals. “People are voting based on some characteristic that’s apparent from the ballot as compared to knowing who these people really are.”

It’s notoriously difficult to run in judicial races, with caps on how much money candidates can raise and spend, and ethical limitations on what they can tell voters about how they would rule. Contests for judicial seats appear at the bottom of the ballot and often draw little scrutiny, leaving voters to make choices with the minimal demographic information they can glean from the ballot itself. That effect, experts and candidates say, is particularly strong in presidential years, when turnout is high and information low.

The margins close to the top of the ticket were enormous, even in races where candidates had the same top line on their resumes.

For Place 8 on the Texas Supreme Court, Justice Gisela Triana of the 3rd Court of Appeals in Austin faced Justice Peter Kelly of the 1st Court of Appeals in Houston. She beat him with 72% of the vote. Kelly called Triana an excellent candidate but said he was nonetheless surprised the margin was “so big.”

In the race for chief justice of the Supreme Court, Amy Clark Meachum, a judge in Travis County, was the top vote-getter in a contested race on the entire Democratic ticket, beating her opponent, Jerry Zimmerer, an appellate justice in Houston, by more than 60 percentage points.

Democrats’ statewide judicial slate in November will be entirely female, with the exception of Brandon Birmingham, a Dallas judge who ran unopposed in a primary for Texas Court of Criminal Appeals.

The pattern did not hold across the aisle. In the only high court primary on the Republican side, incumbent Texas Court of Criminal Appeals Judge Bert Richardson defeated Waco attorney Gina Parker.

Keir Murray, a Democratic consultant in Houston who worked for Kelly, said based on his analysis of early voting and exit polls, the Democratic primary electorate was likely just under 60% women. The enormous victories for women in statewide races show that the wins are driven by more than women voting for women, he said, because the margins “far exceed the gender spread of the electorate itself.”

“Here’s what I think happens,” said Bob Stein, who studies voting behavior at Rice University. “A woman goes in and votes for the presidential primary. On the eighth or ninth screen, they see this Supreme Court race. Let’s assume, like any other voter, they don’t know who the hell to vote for. They see a man and a female. … I would bet you that woman and some men generally vote for the female.”

In many races where women triumphed, both candidates were highly qualified. But panic has set in among attorneys and judges about some surprising female victors.

Austin attorney Madeleine Connor had run four times unsuccessfully and three times as a Republican before last week, when she triumphed in the Democratic primary for 353rd District Court in Travis County over 10-year incumbent Tim Sulak. Sulak had held events with U.S. Rep. Lloyd Doggett and Cecile Richards; Connor was on the state’s short blacklist of “vexatious litigants,” and in January, a federal judge ordered her to pay $43,000 in sanctions for a string of repetitive lawsuits filed against board members of her utility district.

She beat him by almost 2,000 votes — barely over 50% support.

The margins for male-female races in Travis County were wildly different, suggesting some voters did differentiate between candidates. Julie Kocurek, a two-decade incumbent, beat her male challenger by a vastly bigger margin: 135,727 votes, 87% of the vote.

In Houston, Democratic voters unseated five male incumbent district court judges in favor of female challengers. One winner was Dawn Deshea Rogers, a 17-year civil litigator who worked for the Texas attorney general’s office, the Texas Education Agency and the Texas comptroller, as well as in private practice. Rogers, who did not return a request for comment, beat incumbent Judge Steven Kirkland.

She won by more than 10 percentage points.

“This is not to say the women are not capable lawyers or won’t make good judges,” Kirkland said. But “except for the top of the ticket, Democratic primary voters rejected men without regard to any other factor. It’s hard to see anything else.”

Brittanye Morris, who practices mostly real estate and business litigation and graduated from law school in 2015, unseated Daryl Moore, a district judge with more than 25 years of legal experience and good ratings from local attorneys. Morris does not face a general election opponent.

“I’m sure there are a multitude of reasons why people vote the way they do,” Morris said. “I would like to think that because I am in the community and had a really good ground game, that led to them picking me, not just because I’m a woman.”

Black women like Morris and Rogers have recently soared to power as judges in Houston, one of the country’s most diverse cities. In 2018, after rallying around a “Black Girl Magic” slogan, 17 black women were elected to the bench there.

Three women and six men — all Republicans — sit on the Texas Supreme Court. Sharon Keller serves as presiding judge of its all-Republican sister body, the Texas Court of Criminal Appeals, on which four women and five men sit. Fifty-one percent of the state’s intermediate appellate justices are men, as are 63% of district court judges, according to the most recent state statistics, from September.

Women whose names do not sound obviously female may have suffered for it at the polls last week. In Austin, Kennon Wooten lost to Maria Cantú Hexsel; in Dallas, Marty Jo Taylor lost to Kim Brown; and in Houston, Velda Faulkner — ballot name “V.R. Faulkner” — lost to Tamika “Tami” Craft and Cheri Thomas.

In places like Houston, Austin and San Antonio, these trends are likely to continue, judges and experts said.

“For over half of my career, these judicial seats were held by white males,” said Dayna Blazey, a 30-year veteran of the Travis County district attorney’s office who beat incumbent Judge David Wahlberg in the primary race for 167th District Court. “And I think the trend is changing.”

Wahlberg said he “had known all along that the gender issue was a serious concern,” but he thought his campaign could overcome it through events and advertising.

“I get it, you know, my mother raised me right,” Wahlberg said. “It’s just, it’s sort of striking that it’s all of a sudden swept the state. … I’ve felt like I’ve been doing a good job.”

The effect is only amplified in a big urban county with a long ballot in a presidential election year. With a president on the ballot, judges said, it’s especially hard to get voters to pay attention to judicial races.

Jennifer Lawless, who studies women in politics at the University of Virginia, cited research indicating that some voters have a baseline gender preference.

Lawless said women, to the extent that they are stereotyped as more cooperative and empathetic, might see a boost in judicial races from voters who want judges with those qualities. And the “electability” concerns that seem to doom women competing, for example, for president, come into play less in races voters view as lower-stakes.

Alcala, who left the bench in part because of the challenges she faced running in a Republican primary with a Hispanic surname, said it’s “kind of a mixed bag.”

“More gender equality in government — I don’t know that that’s a bad thing,” she said. “Assuming everybody’s qualified, I don’t quarrel with that kind of decision. The only problem is when you’ve got someone who really is qualified and someone who really isn’t.

“We’ve had decades of all-male representation,” she added. “Maybe now it’s going to be some years of predominantly women judges.”

Changing how Texas selects its judges is a perennial issue at the Capitol — but it’s a politically treacherous one that rarely gains much traction. Judges said running on a different schedule than presidents and governors might help them gain more attention from voters.

For now, though, some men said it’s hard to picture a future on the bench at all.

“In a large urban area with long ballots, it is unrealistic to expect voters to get to know all the judge candidates or for candidates to get to meet all the voters. Until we bridge that, we’re trapped in superficial factors deciding these elections. While gender was the factor this month, party will likely be the factor in November,” Kirkland said.

“As for me, I’m headed to the beach,” he said. “I’ll figure the rest out later.”

Disclosure: Rice University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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