For better or worse, so-called nonpartisan races are becoming extinct. True, there are still elections where candidates are prohibited from declaring party affiliation, such as those for judgeships, city council and – in some instances – sheriff. But just because they’re called nonpartisan doesn’t make it so.
The most glaring example of that this election cycle is the race for the Montana Supreme Court between Justice Mike Wheat and Lawrence VanDyke. This matchup is far more partisan than many of those in which candidates have Rs and Ds after their names. One recent mailer declared which candidate is more like President Barack Obama and which is more like Mitt Romney; the secretary of state subsequently filed a complaint over the mailers, alleging they violated state law.
That is not the only race for judgeship that has turned political. A candidate for justice of the peace in Sanders County, Mark French, argued that the Montana Judicial Code of Conduct preventing him from touting his Republican endorsements is a violation of free speech. The Sanders County Republican Committee, which French’s wife leads, had already won the right to endorse him, but the judicial candidate was still barred from campaigning on the fact.
French’s case made it all the way to the U.S. Supreme Court, which earlier this month rejected his request to block the state rule. The laws regarding judges’ elections are meant to ensure an independent judiciary, but fewer voters regard these races as nonpartisan, and it will be interesting to see how long some of these rules last.
“Activist judge” is now a common term to describe a judge whose rulings don’t align with your beliefs. And it’s not altogether off base to view courts through a political lens. U.S. Supreme Court justices are nominated to lifetime terms by the president, and it is an altogether political process. More often than not, Democrats nominate more liberal justices and Republicans more conservative.
There are plenty of other local examples of nonpartisan races that are partisan. Take the recent “nonpartisan” elections for Whitefish City Council in which candidates were often grouped together by their respective politics. In 2009, the council swung right with the election of Phil Mitchell, Bill Kahle and Chris Hyatt. Two years later it veered left with the election of John Anderson, Richard Hildner and John Muhlfeld. The respective candidates’ party affiliation wasn’t listed after their names on the ballot, but most voters knew the politics of each.
In sheriff races, a post that has become much more politicized in recent years, there are still counties such as Lincoln that host nonpartisan races. But does that really mean the contests are any less political? More often, the answer is no.
It would be nice to think that those who enforce and interpret laws, such as law enforcement officers, county attorneys and judges, would be elected on merit and assumed to be impartial. But anymore, constituents want to know a candidate’s party affiliation, regardless of whether that should influence the way a candidate performs the job.
It’s difficult to understand why some Montana elections are partisan and others not. For example, the Public Service Commission race is partisan. The five members of this board primarily regulate our utilities and oversee safety regulations. It’s unclear how someone’s politics would matter in such a job, but apparently they do.
A handful of states already elect supreme court justices in partisan races, which critics argue has contributed to their questionable integrity. And even if Montana’s judges’ races remain nonpartisan, expect that to be in name only.