Election ads in judicial races can tilt rulings, study finds

The flood of political ads in state judicial elections appears to have swept away many criminal appeals, according to a critical new study.

The more judicial ads that run, the more likely state supreme court justices are to vote against criminal appeals, the study sponsored by the liberal American Constitution Society for Law and Policy found. Any judges ruling on criminal cases might second-guess their decisions for fear of such ads being used during their own campaigns, analysts think.

“Often, judges will be wary of how they vote in the cases, because they’re aware the vote may be used in a future attack ad,” study co-author Joanna Shepherd, a law professor at Emory University, said Tuesday.

Shepherd and her co-author, Emory law professor Michael S. Kang, studied the fates of more than 3,100 criminal appeals filed in 32 states and combined this with data on judicial election advertising. They found a higher number of television ads was associated with justices casting fewer votes in favor of defendants in criminal appeals.

The relationship between ads and the rejection of criminal appeals is strongest among Republican judges, the study found.

“These races have become increasingly infected by money and negative attack ads,” American Constitution Society President Caroline Fredrickson said. “The findings are simply alarming.”

The Constitution society, a liberal legal group, is among several advocacy organizations decrying the rise of judicial campaign spending, especially by outside groups. A separate study by the nonpartisan Brennan Center for Justice, for instance, found that political parties and special interests spent a record $24.1 million during the 2011-12 election cycle, nearly double the amount spent in 2007-08.

The judicial candidates themselves raised an additional $32 million during the 2011-12 cycle. The resulting ads can be brutally black and white, or, put another way, highly motivating.

In Arkansas, for instance, an ad sponsored this year by the anti-gun control Law Enforcement Alliance of America accused one candidate of calling child pornography a victimless crime. In North Carolina, an ad sponsored last April by a political action committee charged that state Supreme Court Justice Robin E. Hudson “took the side of the convicted molesters.”

A eight-year veteran of the state’s high court, Hudson had to respond with her own ad denouncing “distortions and lies” and noting that she’s been endorsed by “law enforcement and teachers.”

Four of North Carolina’s seven Supreme Court seats are up for election this year, as are four seats on the Texas Supreme Court.

Some judges stroll to re-election. This year, three of four Kentucky Supreme Court justices are unopposed in their election bids. Two of four justices running for re-election to the Washington state Supreme Court are unopposed. In 14 other states, such as California, Supreme Court justices face retention elections in which they don’t have named opponents.

The U.S. Supreme Court helped open the floodgates for outside spending with the 2010 Citizens United v. Federal Election Commission decision, which permitted corporations and labor unions to spend unlimited amounts on so-called independent expenditures.

Judicial election ads funded by outside groups are far more likely to be attack-oriented, analysts have found.

“They tend to focus on the way judges have voted on particular kinds of cases, particularly in criminal cases,” Shepherd said. “We do find voting in criminal appeals cases has gotten harsher.”