Conflict and Reform: Oklahoma Judicial Elections 1907 - 1998

R. Darcy

R. Darcy is Regents Professor of Political Science & Statistics at Oklahoma State University, co-author of
Women, Elections and Representation and Guide to Quantitative History. He served on the Oklahoma
Judicial Evaluation Commission and the Legislative Task Force on Judicial Selection. This research was
supported by State Justice Institute Grant SJI-99-N-146 to Oklahoma State University. Contact:
bdarcy@okway.okstate.edu Department of Political Science, Oklahoma State University, Stillwater, OK
74078 USA, (405) 744-5641

8 October 2000
 Conflict and Reform: Oklahoma Judicial Elections 1907 - 1998

Abstract

As with the rest of the nation, Oklahoma's judicial system continues to evolve away from politics,

corruption, and outside pressure toward fairness, impartiality and judicial independence. This

process has recently been threatened by groups seeking to leverage judicial decisions by

challenging judges in the retention and non-partisan elections. This article reviews Oklahoma

judicial selection procedures and finds judicial contests are becoming more frequent, expensive

and ugly. Trust and confidence in Oklahoma's justice system, in consequence, is undermined.

While desirable, regulation of campaigns is impractical and likely an unconstitutional free speech

violation. On the other hand, a state-funded system of judicial evaluation can inform voters and

increasing judicial terms will reduce opportunities for judicial contests.

Introduction

Oklahoma has entered into a new era of judicial elections. From 1907 to 1966 judges at

all levels were selected in party primaries, runoffs where necessary, and in the General Election.

They ran as Republicans, Democrats, Socialists or Progressives. The first era of judicial elections

ended in a corruption scandal.1

In 1967 voters amended the Oklahoma Constitution to take direct partisan politics out of

judicial elections. Trial judges would be selected in non-partisan candidate elections for four year

terms. Vacancies would be filled by a Judicial Nominating Commission screening applications

and forwarding three names to the Governor, who would appoint one. Justices of the Oklahoma

Supreme Court and judges of the Court of Criminal Appeals, would be appointed through the

same process used to fill vacancies on the trial courts and would face a retention election after

serving a year and then retention elections every six years. In 1968 the legislature created the

1
See Philip Simpson. 1994. “The Modernization and Reform of the Oklahoma Judiciary,” Oklahoma
Politics 3: 1-14; Philip Simpson. 1996. “The Role of Partisanship in the Reform of the Oklahoma
Judiciary,” Oklahoma Politics 5: 1-17.
 2

Court of Civil Appeals. Its judges would be selected, like trial judges, but for six year terms in

non-partisan candidate elections starting in 1970. Vacancies would be filled by the Judicial

Nominating Commission process. For the 1988 General Election, the legislature changed the

Court of Civil Appeals from non-partisan candidate elections to the retention system. 1968 -

1996 was an era of quiescence.

The third era of Oklahoma judicial elections, unlike the other two, did not begin with

constitutional change. Rather, it is characterized by increasing visibility to, and conflict within,

Oklahoma judicial elections. The cause is changes within the wider national political system.

The solution will not be found in sweeping change. Rather, protecting the judiciary from political

conflict will be achieved through fine-tuning the system we have.

The Development of Judicial Selection in American States to 1960

Oklahoma did not participate in the development of the nation’s judiciary before

statehood in 1907. Its own judicial development, however, was a consequence of that process.

Colonial judges were appointed by governors except in Connecticut and Rhode Island,

where they were selected by the legislatures.2 After 1776 Virginia, New Jersey, North Carolina

and South Carolina joined Connecticut and Rhode Island in having the legislature appoint judges.

Massachusetts, New Hampshire, Pennsylvania, Maryland and New York continued with

gubernatorial appointment and Delaware selected judges jointly between the executive and the

legislature. Of the original thirteen states, only Georgia elected judges.

______________________________________________________________________________

Table 1. Selection Method for State Judges: 1789

2
For this and the following Nineteenth Century development, see James Bryce. 1888. The American
Commonwealth volume II (London: Macmillan):117-124.
 3

Legislative Gubernatorial Mixed Partisan Election (1)

Appointment Appointment (5) Legislature-
(6) Executive (1)
Connecticut Maryland Delaware Georgia
New Jersey Massachusetts
North Carolina New Hampshire
Rhode Island New York
South Carolina Pennsylvania
Virginia

Source: James Bryce. 1888. The American Commonwealth, volume II:117.

______________________________________________________________________________

Between 1812 and 1912 the tide ran toward popular, partisan election. By 1888 twenty-

five states selected judges in partisan elections. Thirteen, largely the original states, still used

appointment systems. Why were Nineteenth Century judicial elections partisan? The answer is

partisan elections were the only kind possible. Political parties printed and distributed the ballots.

The states just counted them. Political parties filled their ballots with party candidates.

______________________________________________________________________________

Table 2. Selection Method for State Judges: 1888

Legislative Gubernatorial Mixed Partisan Election (25)

Appointment Appointment (5) Gubernatorial
(5) Appointment &
Popular Election
(3)
Georgia Delaware Connecticut Alabama
Rhode Island Massachusetts Louisiana Arkansas
South Carolina Mississippi Maine California
Vermont New Hampshire Colorado
Virginia New Jersey Florida
Illinois
Indiana
Iowa
Kansas
Kentucky
Maryland
Michigan
Minnesota
Missouri
Nebraska
Nevada
 4

New York
North Carolina
Ohio
Oregon
Pennsylvania
Tennessee
Texas
West Virginia
Wisconsin

Source: James Bryce. 1888. The American Commonwealth, volume II:117.

A major problem of partisan elections by the turn of the past century was the party

machine and boss system. Judges subservient to a political machine or party boss, especially a

corrupt machine and criminal boss, could not be depended upon to provide impartial justice.3

The modern ballot, printed by the government, was not adopted in the United States until

1888.4 Prior to 1888 the voter was free to supply his (or, occasionally, her) own paper or, more

likely, used the preprinted ballots provided by political parties through their ubiquitous

machines.5 Nonpartisan elections became possible only when the government printed ballots.

Only nineteen years elapsed between the first adoption of the modern partisan ballot and

its supplementation with nonpartisan election of judges. Washington began electing its Superior

Court with nonpartisan ballots in 1907. Iowa and Kansas joined in 1913 and by 1917 twelve

states used nonpartisan ballots to elect some or all judges.6

3
Charles Merrian and Harold Gosnell. 1929. The American Party System Revised Edition (New York:
MacMillan): 119-125; Robert C. Brooks. 1933. Political Parties and Electoral Problems Third Edition
(New York: Harper & Brothers): 230-236.
4
Eldon Cobb Evans. 1917. A History of the Australian Ballot System in the United States (Chicago:
Univeristy of Chicago Press): 19.
5
See Peter H. Argersinger. 1992. Structure, Process, and Party: Essays in American Political History
(Armonk, New York: M.E. Sharpe).
6
Eldon Cobb Evans. 1917. A History of the Australian Ballot System in the United States (Chicago:
Univeristy of Chicago Press): 44; P. Orman Ray. 1922. An Introduction to Political parties and Practical
Politics Revised Edition. (New York: Charles Scribner’s Sons): 338-9; P. Orman Ray. 1924. An
Introduction to Political parties and Practical Politics Third Edition. (New York: Charles Scribner’s
Sons): 290; Carl O. Smith. 1938. A Book of Ballots (Detroit: Wayne University Bureau of Government
 5

Oklahoma became a state after the era of party bosses peaked but before the invention of

nonpartisan elections. The state’s constitutional structure dispersed power. Primaries limited the

ability of a party machine to gain a foothold so the political machine was not a problem.

Nevertheless, Oklahomans were not isolated from broader national trends toward non-partisan

judiciary. Individual corruption substituted for machine corruption as a motive for reforming

judicial selection.

Partisan Judicial Elections: 1907 - 1968

From statehood to 1968, Oklahoma’s trial and appellate judges were nominated and

elected on Republican and Democratic tickets in partisan elections. Candidates raised money and

solicited support. Judicial careers merged with those of politicians generally. Here are some

political-judicial careers from that earlier era.

Robert Lee Williams: Elected to the Oklahoma Supreme Court as a Democrat in 1907

and again in 1908. He resigned in March 1914 to run for Governor, wining the

Democratic Primary and General Election in 1914.

Samuel W Hayes: A Democrat, elected to the Supreme Court in 1907 and 1908. He

resigned in April, 1914 to contest the Democratic Primary for U.S. Senator with

incumbent T.P. Gore but lost.

Thomas Owen: Appointed to the Supreme Court in 1917, won a full term as a Democrat

in 1918. He resigned in 1920, ran for Governor but lost the Democratic Primary.

James I. Phelps: Won the Democratic Supreme Court primary and the 1924 General

Election. In 1928 he was defeated for re-election by Republican James B.

Cullison.7 In 1934 Cullison and Phelps made their way again through the

Research): 18; Willis D. Hawley. 1973. Nonpartisan Elections and the Case for Party Politics (New
York: Wiley):8-19.
7
James B. Cullison also lost the Republican U.S. Senate primary in 1920 and the Republican primary for
Congress in 1936.
 6

primaries and, in the General Election, Phelps took back the seat for the

Democrats. Phelps resigned in 1938.

Riley Fletcher: Elected as a Democrat to the Supreme Court in 1924 and re-elected in

1930, 1936 and 1942. As a sitting Supreme Court Justice he ran for the U.S.

Senate in 1944 and 1948 but lost the Democratic Primaries. He lost the

Democratic Gubernatorial primary in 1952.

Charles Swindall: Elected as a Republican to Congress for an unexpired term from

Oklahoma’s 8th District in 1920 and was defeated in the 1922 Republican

primary. He ran for the Supreme Court in 1928 and won. He was defeated for

re-election in 1934. In 1936 he ran again for Congress for the 8th District but lost

the Republican primary.

Kirksey Nix: Ran for Congress from the Second District in 1944 but lost the Special

Democratic Primary. He was elected to the Oklahoma house as a Democrat in

1948 and to the State Senate in 1950 where he served until 1957. In 1952 he lost

the Democratic Primary for the US House of Representatives in the Third

District. In 1956 he won the Democratic Runoff and General Election for the

Criminal Court of Appeals. He was unopposed for re-election in 1966. As a

sitting judge he ran for Attorney General in 1964. He came in second in the

Democratic Primary but withdrew before the Runoff Election. In 1968 he won

the Retention Election. He resigned in 1971 under a provision for disability to

participate in his son’s murder trial.

For many in Oklahoma, judge was just another political office. While there were those

that ran only for judicial or only for political office, many others ran for both. There was no firm

boundary between what was political and what was judicial.

 7

Elsewhere things had begun to change. Nonpartisan elections required candidates to

raise money on their own as opposed to relying on political party support. Even nonpartisan

campaigns could become ugly and, in consequence, threaten judicial independence and lower

public esteem for the justice system.

In 1934 California established the first judicial retention election. The incumbent would

appear on the ballot without an opponent and the voters would vote for or against. In the event of

a vacancy, the Governor, with the approval of a commission, would make a temporary

appointment and that person would appear on the next retention ballot.8 The American Bar

Association endorsed merit selection for judges by 1937 and judicial reform began to be

advocated in Oklahoma.9

In 1940 Missouri voters passed a variant of the 1934 California plan. Candidates would

make application to a commission which would send a list of names to the governor who would

select one. After the individual has served at least one year he or she would be placed on a

retention ballot. There would not be an opponent. Where in the 1934 California Plan the

Commission could reject a Governor’s nomination but not develop one of its own, the 1940

Missouri Plan allowed the Governor to pick, but only from Commission nominees.10 Missouri’s

reform left the trial judges outside Kansas City and St. Louis to be selected in nonpartisan

candidate elections. By 1966 five states had adopted the ‘Missouri Plan’ to select at least their

appellate courts

8
Frederic A. Ogg and P. Orman Ray. 1938. Introduction to American Government, sixth edition (New
York: D. Appleton): 800-3.
9
American Bar Association. 1998. Report and Recommendations of the Task Force on Lawyer’s Political
Contributions Part Two (Washington, D.C.): 3; “Evaluation of Judicial Administration in Oklahoma.”
1951. Oklahoma Law Review 4.
10
See Richard A. Watson and Rondal G. Downing. 1969. The Politics of the Bench and Bar: Judicial
Politics Under the Missouri Nonpartisan Court Plan (New York: Wiley): 7-12; Thomas Dye. 1981.
Politics in States and Communities Fourth Edition. (Englewood Cliffs, New jersey: Prentice-Hall): 189-
193.
 8

______________________________________________________________________________

Table 3. Selection Method for State Supreme Courts: 1966.

Legislative Gubernatorial Partisan Election Nonpartisan Missouri Plan (5)

Appointment (5) Appointment (8) (18) Election (14)

Connecticut California Alabama Arizona Alaska

Rhode Island Delaware Arkansas Idaho Iowa
South Carolina Hawaii Colorado Michigan Kansas
Vermont Maine Florida Minnesota Missouri
Virginia Maryland Georgia Montana Nebraska
Massachusetts Illinois Nevada
New Hampshire Indiana North Dakota
New Jersey Kentucky Ohio
Louisiana Oregon
Mississippi South Dakota
New Mexico Utah
New York Washington
North Carolina Wisconsin
Oklahoma Wyoming
Pennsylvania
Tennessee
Texas
West Virginia

Source: Author’s calculations from Book of the States 1966-1967 1966. (Chicago: Council of
State Governments):116-7.
______________________________________________________________________________

The Oklahoma partisan judicial system collapsed when Justice N.S. Corn was sentenced

to prison for bribery, Justice Earl Welch for income tax evasion, and Justice N.B. Johnson was

impeached in a 1964-5 scandal.11 By the early 1960s Oklahomans began to reach the conclusion

that a system of partisan justice could not be made to work. Three corrupt supreme court justices

were seen as a consequence of the system of high-cost partisan elections rather than of individual

weakness. Oklahoma looked to solutions pioneered in other states and voters passed State

Questions 447 and 448 in 1967. These Constitutional Amendments established the present merit

selection and retention system for appellate judges and non-partisan elections for trial judges.

11
Phillip Simpson. 1994. “The Modernization and Reform of the Oklahoma Judiciary.” Oklahoma
Politics 3 (October): 1 – 14; Phillip Simpson. 1996. “The Role of Partisanship in the Reform of the
Oklahoma Judiciary.” Oklahoma Politics 5 (October): 1 – 16.
 9

Government should be answerable to its citizens through frequent elections. In the states

this is universally accomplished frequent elections to the lower legislative house. Some states go

on to elect more officials, some less. Nebraska has only one legislative house while the other

states have two. Nevada gets by with a forty-two member lower house while New Hampshire,

with a smaller population, elects four hundred. Maine elects only a Governor state-wide while

North Dakota elects twelve state-wide officials. Arrangements for selecting judges vary widely.

These arrangements are a product of political and historical circumstances and not deducible from

some general principle.

Let us look at the elections that followed under Oklahoma's new judicial selection

system.

Oklahoma Judicial Retention Elections: 1968 - 1996

Figure 1. graphs the percent voting ‘Yes’ on the ballot asking if the appellate judge or

justice should be retained for each election from 1968 to 1998.12

________________

Figure 1 about here

________________

When we focus on the 1968 – 1996 period -- we will look at the 1998 elections separately

-- we notice several things. First, the retention period begins with strong support for the judges.

Voting to retain averaged over seventy percent. Second, although it seems to bubble up and

down, there has been a steady decline in the favorable vote. This decline averages one percent

for each two-year election cycle. Third, we notice that the spread is very little from justice or

12
Kirksey Nix, a judge on the Court of Criminal Appeals, will be excluded from our analysis. His
involvement in partisan politics and his family’s criminal activities make him unique. “Full Disability
Given Judge Nix.” 1971. Stillwater NewsPress October 8: 2; Greg LaCour. 1997. “Holcomb, Nix given
life terms, Sharpe 5 years.” Biloxi Sun Herald, September 23; Kim Stott. 1983. “Sons of Prominent Men
Find Trouble With Law.” Daily Oklahoman, June 12.
 10

judge to judge. The vote to retain has been going down and votes have not been distinguishing

individual judges and justices. It does not even distinguish the different courts. The same model

fits well for the Supreme Court, the Court of Civil Appeals and the Court of Criminal Appeals.

Voters had been responding in the same predictable way to each judge in each election. That

means that all votes can be described with the same model: a straight line sloping down with a

decline of one percent in voting to retain each two-year election cycle. After thirty years the vote

for retention had dropped an average of fifteen percent. There were two exceptions to the

tendency of judges to bubble up and down together.

In 1986 the Board of Directors of the Oklahoma District Attorneys Association and the

Daily Oklahoman campaigned against Court of Criminal Appeals Judge Ed Parks. The issue was

Parks’ stated opposition to the death penalty, although he had voted to confirm death sentences.13

Parks won but his vote, 62.4 percent favoring retention, was 6.56% below the average for other

appellate judges that year.

In 1996 a campaign was waged against Judge Keith Rapp of the Court of Civil Appeals.

One hundred fifty thousand dollars bought a few full page ads and news releases on the eve of the

election by ‘Citizens for Judicial Review’ managed to lower his vote percent by five percent from

that of his fellows. Tulsa-based StateSource organized ‘Citizens for Judicial Review’.14

13
Muskogee County District Attorney Drew Edmondson and Jackson County District Attorney Steve
Suttle launched a campaign to oppose Parks’ retention; see “Judge Involved in Controversy.” 1986. Daily
Oklahoman. editorial May 24; “Appeals Judge Biased, District Attorneys Say.” 1986. Daily Oklahoman
September 19; “Challenging a Sitting Judge.” 1986. Daily Oklahoman editorial. September 20; “Death
Sentence Upheld.” 1986. Daily Oklahoman. July 26; “Judges Sing Same Old Song.” 1985. See also Daily
Oklahoman editorial. November 9; “Court Ruling Defies Logic.” 1985. Daily Oklahoman editorial.
October 2.
14
John Greiner. 1996. “Study Rates Court’s Decisions on Business.” Daily Oklahoman, October 31;
Charles Mahtesian. 1998. “Bench Press: Its Legislative Gains Undone by Unsympathetic State Supreme
Courts, The Business Lobby in Bringing its Political Resources to Bear on Judicial Elections.” Governing.
(August): 23: 18-23; “StateSource, LLC Company Profile.” No date. (Tulsa, Oklahoma); John J. Fialka.
1999. “How Koch Industries Tries to Influence the Judicial System.” Wall Street Journal August 9: A20.
 11

While no Oklahoma appellate judge or justice had lost a retention vote, support generally

was dropping. Limited campaigns against Ed Parks and Keith Rapp demonstrated support for

judges in Oklahoma can be ‘soft.’ People do not know much about the justice system or its

judges and the capacity to wage ‘instant’ campaigns has increased.15 As a result, a small amount

of negative information can make a judge or justice vulnerable. As the proportion voting for

retention slowly drops toward fifty percent, individual vulnerability increases. By 1990 and 1994

appellate judges and justices were averaging 57 percent and 58.5 percent of the vote, respectively.

A stronger campaign than those faced by judges Ed Parks and Keith Rapp could draw blood, and

blood, once drawn, would excite more challenges. Oklahoma appellate judicial elections,

quiescent between 1968 and 1996, were entering a period of vulnerability and attack.

Non-Partisan Trial Judge Elections: 1968 - 1994

Oklahoma law provides for a non-partisan primary election if more than two candidates

file for district or associate district judge. If a candidate gains more than half the votes in the non-

partisan primary election he or she is elected and does not face the general election. If only one

candidate files for a judicial position the candidate is deemed elected and does not appear on the

ballot. Vacancies are filled by gubernatorial appointment from three candidates forwarded from

the Judicial Nominating Commission.

Election Contests

Many Oklahoma public offices are left uncontested. When this happens, voters have no

say on who serves. In 1998 the Attorney General and State Treasurer were not on the ballot.

15
For national data see American Bar Association. 1999. Perceptions of the U.S. Justice System
(Washington, D.C.); National Center for State Courts. 1999. How the Public Views the State Courts: A
1999 National Survey (Williamsburg, Virginia); Christopher C. Blunt. 1999. “Can Voters Judge?: Choice
and Participation in Judicial Retention Elections.” Presented at the annual meeting of the Western Political
Science Association, Seattle, Washington, March 25-7.
 12

Forty-five state legislators were also unopposed. Judicial seats are less contested than partisan

offices.

Forty-seven District and Associate District Judge seats, thirty-one percent, were not

contested even once between 1978 and 1994 because only one candidate filed. In these districts

judges were either appointed to fill vacancies and went unchallenged in the election or were

deemed elected when on one else filed for the position. When we consider also elections in

which there was only one contest, the proportion of judicial seats with at most one election in

sixteen years is over sixty percent.

______________________________________________________________________________

Table 4. Judicial seats not contested or contested only once: 1978 - 1994

Not Contested: 1978 - 1994

District Judge (20) Associate District Judge (27)
4-1 Alfalfa, Dewey, Major, Woods, Woodward Beaver Nowata
4-2 Blaine, Garfield, Grant, Kingfisher Beckham Okmulgee
4-3 Blaine, Garfield, Grant, Kingfisher Canadian Osage
5-4 Comanche, Cotton Cleveland Seminole
7-1 Oklahoma Craig Texas
7-2 Oklahoma Custer Tillman
7-4 Oklahoma Dewey Tulsa
7-10 Oklahoma Grant Wagoner
9-1 Logan, Payne Johnston Washita
14-3 Tulsa, Pawnee Lincoln Woodward
14-4 Tulsa, Pawnee Love
18-1 McIntosh, Pittsburg McCurtin
20-1 Carter Major
20-2 Johnson, Love, Marshall, Murray Mayes
22-1 Hughes Murray
23-1 Lincoln, Pottawatomie Muskogee
23-2 Lincoln, Pottawatomie Noble
24-1 Creek
24-2 Okfuskee
24-3 Okmulgee

Contested Once: 1978 - 1994

District Judge (27) Associate District Judge (20)
1-1 Beaver, Cimarron, Harper, Texas Carter
 13

3-1 Jackson, Kiowa, Tillman, Washita Choctaw

5-1 Comanche, Cotton Cimarron
5-2 Comanche, Cotton Comanche
5-3 Comanche, Cotton Elis
7-3 Oklahoma Garfield
7-7 Oklahoma Garvin
7-8 Oklahoma Greer
7-11 Oklahoma Harmon
7-13 Oklahoma Harper
7-15 Oklahoma Hughes
8-1 Kay, Noble Jackson
11-1 Nowata, Washington Kay
12-1 Craig, Mayes, Rogers Marshall
14-5 Tulsa, Pawnee Okfuskee
14-7 Tulsa, Pawnee Pittsburg
14-8 Tulsa, Pawnee Rogers
14-9 Tulsa, Pawnee Stephens
14-10 Tulsa, Pawnee Washington
14-14 Tulsa, Pawnee Woods
15-1 Wagoner, Cherokee
15-2 Wagoner, Cherokee
15-3 Adair, Sequoyah
15-4 Muskogee
19-1 Bryan
22-3 Seminole
24-4 Creek

Source: Author’s calculations from State Election Board reports

______________________________________________________________________________

No Judicial district or county held an election for District Judge or Associate District

Judge in each of the five elections between 1978 and 1994.16

When we divide the six elections into two periods, 1978 – 1986 and 1990 – 1994 it

becomes clear that election contests have increased. Eighty-five District and Associate District

Judge positions were filled with elections in the first period. Between 1990 and 1994 ninty-

three District and Associate District Judge positions were contested. Uncontested seats dropped

16
Significant changes took place between 1966 and 1978 making tracking districts before 1978
problematical.
 14

from eighty to sixty-eight percent of the total.17 Contests in the non-partisan judicial races have

shown a dramatic increase in the decade of the 1990s.

There is no reason to think this trend will slow or reverse. It is part of a wider trend in

Oklahoma politics of change from uncontested elections generally to greater political conflict. In

1978, for example, only forty-one percent of the Oklahoma House of Representatives seats were

settled in the November election. By 1998 this had risen to fifty-five percent. In 1970 twenty-

one percent of the District and Associate District Judge positions were contested. This reached

thirty-three percent by 1994.

17
This is despite there being three elections between 1978 – 1986 and only two elections in the 1990 –
1994 period.
 15

______________________________________________________________________________

Table 5. District and Associate District Judge Contests by Year and by Region: 1970 - 1994

1970 1974 1978 1982 1986 1990 1994 Total

Total 30 34 29 27 29 44 49 242
Contests
Total Seats 137 137 146 148 148 148 148 1012

% Seats 21.89 24.82 19.86 18.24 19.59 29.73 33.11

Contested
Period % Seats Contested 20.81 31.42 23.913

Metro 1970 1974 1978 1982 1986 1990 1994 Total

Total 8 6 9 6 5 6 13 53
Contests
Total Seats 24 23 28 29 29 29 29 191

% Seats 33.33 26.09 32.14 20.69 17.24 20.69 44.83

Contested
period % Seats Contested 25.56 32.76 27.75

Non-Metro 1970 1974 1978 1982 1986 1990 1994 Total

Total 22 28 20 21 24 38 36 189
Contests
Total Seats 113 114 118 119 119 119 119 821

% Seats 19.47 24.56 16.95 17.65 20.17 31.93 30.25

Contested

period % Seats Contested 19.73 31.09 23.02

Source: Author’s calculations from Oklahoma election and court data.

N.B. Metro refers to Oklahoma and Tulsa Counties and to the 7th and 14th Judicial Districts.
______________________________________________________________________________

We can see that between 1970 and 1986 twenty percent of the elections were contested

but that this increased in the 1990s to over thirty percent. The metropolitan areas in 1970 – 1994

were not significantly different from the rest of the state in the frequency of judicial electoral

contests.18

18
Chi square = 1.90, DF=1, p < 0.167.
 16

The 1998 Election

Appellate Judicial Retention Elections

In the outside world, things have been changing. Campaign finance laws, PACs,

primaries, Supreme Court decisions saying ‘money is speech,’19 the atrophying of political parties

and their replacement by media-centered professional campaign corporations, all those and

more,20 combined with an enormous increase in litigation spurred on by legislation encouraging

class-action, punitive damages, and expanded liability, as well as struggles over the death penalty

and abortion, drew both new attention to the courts and the means to exploit that attention.21 The

judicial context today, in Oklahoma and nationally, is a far cry from what it was in the late 1960s.

The political game and its rules have changed drastically.

Late in 1997 a meeting in Washington between representatives of the U.S. Chamber of

Commerce and the tobacco industry announced a campaign to mount

“legal challenges to the election of judges in Alabama and other states seen as

particularly friendly for plaintiffs … The millions of dollars the battle will need are to be

raised from business interests who see growing legal costs as a burden to economic

growth and competitiveness … ”22

19
“Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being
free to drive an automobile as far and as often as one desires on a single tank of gasoline.” Buckley v.
Valeo, 424 U.S. 1 (1976).
20
Larry J. Sabato, editor. 1989. Campaigns and Elections: A Reader in Modern American Politics
(Glenview, Illinois: Scott Foresman).
21
Stephen B. Bright and Patrick J. Keenan. 1995. Judges and the Politics of Death: Deciding Between the
Bill of Rights and the Next Election in Capital Cases.” Boston University Law Review 75 (May): 759-835;
Stephen B. Bright. 1997. “Political Attacks on the Judiciary: Can Justice be Done amid Efforts to
Intimidate and Remove Judges from Office for Unpopular Decisions?” New York University Law Review
72 (May): 308-36.
22
“ ‘War’ Seen for Trial Lawyers.” 1997. Tulsa World December 11: A-7.
 17

Other groups in Tennessee, Georgia and California targeted State Supreme Court justices

for their decisions.23 Here, StateSource, a public relations firm with links to conservative groups,

formed Oklahomans for Judicial Excellence in 1997. Oklahomans for Judicial Excellence claimed

support from fifty-two associations and corporations.24 StateSource has offices in Tulsa and

Oklahoma City. They have paid, year-around staff and they have been successful in raising

money. They claim to have raised and spent $250,000 on their 1998 campaign and to have

distributed 1.4 million of their scorecards – all directed at Oklahoma judicial elections.25 A

related group, Oklahomans for Jobs and Economic Growth, actively campaigned against judges.26

There were three responses to the StateSource campaign. Among appellate judges

targeted by ‘Oklahomans for Judicial Excellence,’ Judge Stublefield did not raise funds while

Justice Wilson did. Her committee raised $63,585.59 and spent $67,378.59 according to reports

on file with the State Ethics Commission. Eighty-four percent of the money she raised, according

to my calculations, came directly from attorneys, their law firms and their PACs. Most of the rest

came from attorney’s spouses or relatives. Justice Wilson raised, what by today’s standards, must

be considered a modest amount. In other states judges are being forced to raise much more

money as campaigns against some of them became heated and ugly.27

23
David Broder. 1998. “Ominous Warnings for the Judges.” Washington Post, July 5: C-7.
24
“StateSource, LLC Company Profile.” No date. (Tulsa, Oklahoma).
25
Chuck Ervin. 1998. “Interest in Justice: Organization Claims Interest Groups Pose Threat.” Tulsa
World October 23: A8; Chuck Ervin. 1998. “New Judicial Watchdog Group Had Lackluster Start.” Tulsa
World November 8 A13; “StateSource, LLC Company Profile.” No date. (Tulsa, Oklahoma). Allen B.
Wright, Koch Industries Director of Oklahoma Public Affairs, told the author score cards were distributed
through the Christian Coalition and that Koch Industries provided approximately ten percent of the funding
for the project (August 17, 1999); see also Chuck Ervin. 1998. “Oklahoma Judges Rated by Coalition.”
Tulsa World April 5, which quoted judge Keith Rapp as saying “They’ve stricken fear into the judiciary.”

26
Scott Mitchell. 1998. “Group Endorses Justices/Judges” Press Release. (Tulsa: Oklahomans for Jobs
and Economic Growth).
27
American Bar Association. 1998. Report and Recommendations Regarding Contributions to Judges and
Judicial Candidates. (Washington, D.C.)
 18

The second response was for the Oklahoma Supreme Court and the Oklahoma Bar

Association to create the Independent Judicial Evaluation Commission to provide voters with

independent information about appellate judges on the retention ballot. In contrast to StateSource

and Oklahomans for Judicial Excellence, the Commission found all the judges on the retention

ballot to be highly regarded by attorneys whose cases were recently decided.28

The third response had both Oklahoma and national roots. Citizens for Independent

Courts, a national effort, achieved considerable Oklahoma visibility through its co-chair Mickey

Edwards, former Oklahoma Congressman and now faculty member at Harvard University.

Edwards made himself available to Oklahoma media with rebuttals to StateSource and

Oklahomans for Judicial Excellence.29

Both the Supreme Court and the Court of Civil Appeals average vote For Retention went

up – reversing a decade-long decline. In both courts, if we compare what happened in 1998 with

what would have been predicted from the 1968 – 1996 trend, we find that 1998 averaged over

nine percent better than could be expected from past experience.30 This means we cannot model

he 1998 elections with the model that fit so well for the previous thirty years. The negative

campaign of ‘Oklahomans for Judicial Excellence’ was a failure if all we are concerned with is

the election results.31 The five appellate candidates endorsed by “Oklahomans for Jobs and

Economic Growth,” based on the “Oklahomans for Judicial Excellence” ratings,32 gained only

five tenths of a percent over the three candidates not endorsed or opposed.

28
R. Darcy and others, “Oklahoma Judicial Evaluation Commission Survey.” 1998. Stillwater, Oklahoma.
29
John Greiner. 1998. “Two Groups Offer Voters Conflicting Testimony on Jurists.” Daily Oklahoman
October 23: 10; Chuck Ervin. 1998. “Interest in Justice.” Tulsa World October 23:A8.
30
I constructed a ninety-five percent confidence band about the best fitting straight line and its projection to
1998. The 1998 returns were outside the upper limit of that band.
31
Chuck Ervin. 1998. “New Judicial Watchdog Group had a Lackluster Start.” Tulsa World November
8: A13.
32
Scott Mitchell. 1998. “Group Endorses Justices/Judges.” Press Release (Oklahomans for Jobs and
Economic Growth, October 15th).
 19

Non-Partisan Elections

Whereas before 1998 the Metro and non-Metro areas were not different in the probability

that there would be a contest for a district or associate district judge seat and the seats contested

averaged under twenty five percent, in 1998 a majority of the Metro seats were contested (55%)

while less than a quarter (21%) of the Non-Metro seats were on the ballot.

______________________________________________________________________________

Table 6. Metro and Non-Metro Areas

Contested Elections: 1998

Metro Non-Metro
Contested 55.17% 21.01%
Non-Contested 44.83% 78.99%
Total 100.00% 100.00%
(n) (29) (119)

Chi Square = 13.58 DF = 1 p < 0.0002

Source: Author's calculations from data reported in

Election Results and Statistics 1998 (Oklahoma City:
Oklahoma State Election Board).
______________________________________________________________________________

Divisive campaigns lower public trust and confidence in the judiciary and, ultimately,

erode judicial independence. Hard fought campaigns flared in Metro area judicial races. We can

expect that over time the pattern will extend to the Non-Metro areas as well as Oklahoma,

generally, becomes politically more competitive.

‘Oklahomans for Judicial Excellence’ also evaluated trial judges in 1998. Their negative

evaluations may have spurred some challenges. StateSource claimed to have surveyed “all active

resident members of the Oklahoma Bar Association.”33 Among the considerations were

“willingness to dismiss frivolous or unsubstantiated cases.” They also looked at how well judge’s

33
Oklahomans for Judicial Excellence, Inc. 1998. “Economic Report Card on Oklahoma Judges.” (Tulsa,
Oklahoma): 2; Chuck Ervin. 1998. “Oklahoma Judges Rated by Coalition.” Tulsa World April 5.
 20

opinions were upheld on appeal. About eleven percent of those surveyed responded.34 There was

no indication we could find as to how many responded for a particular judge. It could be as few

as one or even zero – as ‘Oklahomans For Judicial Excellence’ added their own reasoning to that

of the lawyers who replied to their survey. Like their appellate evaluations, these scorecards were

distributed by the Christian Coalition. Organizers claimed to have distributed 1.4 million

scorecards.35

Only 27 of the ‘Oklahomans for Judicial Excellence’ rated 147 trial judges faced an

opponent in the primary or general election. Three of the seventeen judges rated below average

were defeated (17%) and two of the ten judges rated above average were defeated (20%). When

contested, trial judges rated below average by ‘Oklahomans for Judicial Excellence’ did better

than trial judges rated above average.

Like their campaign against the appellate judiciary, the Oklahomans for Judicial

Excellence campaign for or against trial judges cannot be said to have been successful. They

either had no impact or judges they opposed did better than judges they supported.

34
Dion Lefler. 1999. “Koch Backs Business Scorecards for Judges.” Wichita Eagle (August 29) 1A.
35
Chuck Ervin. 1998. “Interest in Justice: Organization Claims Interest Groups Pose Threat.” Tulsa
World October 23: A8; Chuck Ervin. 1998. “New Judicial Watchdog Group Had Lackluster Start.” Tulsa
World November 8 A13; “StateSource, LLC Company Profile.” No date. (Tulsa, Oklahoma). Allen B.
Wright, Koch Industries Director of Oklahoma Public Affairs, told the author score cards were distributed
through the Christian Coalition and that Koch Industries provided approximately ten percent of the funding
for the project (August 17, 1999).
 21

______________________________________________________________________________

Table 7. 1998 Primary and General Elections with Incumbent Rated Trial Judges

District Court StateSource Score StateSource rating StateSource rating Vote %

Judge (average for all below 60.52 average above 60.52 average
District Court for all District Court for all District Court
Judges = 60.52) Judges Judges
Goodwin 48.88 won 61.13
Michael 56.86 won 54.06
Blevins 56.22 lost 46.04
Owens 68.55 won 60.88
McElwee* 67.33 lost 31.41
Burkett 64.66 lost 44.94
Gray 61.59 won 56.09
Boyd 67.66 won 71.66
Shaffer 50.65 won 60.78
Crewson 68.99 won 69.33
Winslow 73.33 won 70.86
Shallcross 58.58 won 69.93
Sewell 55.82 won 53.23
Melson 57.49 lost 45.99
Colclazier 51.33 won 52.39
Carter 62.61 won 66.32
won: 6 of 8 6 of 8

Associate StateSource Score StateSource rating StateSource rating Vote %

District Court (average for all below 57.72 average above 57.72 average
Judge Associate District for all Associate for all Associate
Court Judges = District Court Judges District Court Judges
57.72)
Watson 56.66 won 53.56
Schwabe 43.33 won 59.04
Skimbo* 41 lost 24.74
Mowery 45.66 won 50.46
Miller 49.66 won 68.70
Alford 57.63 won 74.65
Mattingly 46.67 won 52.74
Gardner 52.99 won 51.12
Blythe 35.66 won 50.91
Enos 58.14 won 62.41
Beasley 66.22 won 63.23
won: 8 of 9 2 of 2

won overall: 14 of 17 = 83% 8 of 10 = 80%

Source: Author’s calculations from StateSource Judicial Scorecard and

Oklahoma Election Board, Election Results and Statistics, 1998 (Oklahoma City: 1999).
Below average StateSource scores in bold. *indicates a primary election.
______________________________________________________________________________
 22

Money

Political campaigns require money. Campaign consultants, television, radio and

newspaper advertising, yard signs, buttons are all expensive. In metropolitan areas costs are

generally greater due to the greater media expenses but campaigns in non-metropolitan areas can

also prove expensive. Generally, campaigns are as expensive as the candidate willing and able to

spend the most makes it. Campaigns are competitive. Spending by one candidate creates a need

and an expectation that other candidates seek to match.

In 1998 the most expensive Oklahoma judicial race took place between Gordon Melson

and George Butner for District Judge in Hughes, Pontotoc and Seminole counties. They took in a

combined $218,793.79. The most expensive race in the Metro counties was in Oklahoma

County, probably between Twyla Gray and James Blevins, who took in a combined $211,903.80.

But the race between Noma Gurich and Diane Box may have spent yet more. We have no way of

knowing. Diane Box filed an affidavit with the State Ethics Commission stating she was using

only her own money and not taking contributions. On this basis she was not required to report

her spending. Her opponent, Noma Gurich, took in $113,563.22 and if Diane Box equaled or

exceeded that in her spending, which she easily could have, that would be the most expensive

judicial contest that year. On the opposite side of the scale Charles Barker and Norman Russell

took in $7,941.66 contesting for Kiowa County Associate District Judge. Overall, almost three

million dollars was taken in to contest judicial races in 1998 with the largest component coming

from attorneys.

When the average taken in (among those reporting) are calculated for the Metro and Non-

Metro area candidates we find that the Metro area candidates took in and spent twice what the

Non-Metro area candidates took in and spent. Indeed, one Metro area candidate, Carolyn Ricks,

who did not attract an opponent and therefore was not on the ballot, raised more money ($17,
 23

1725) than a majority (24 of 46) of the Non-Metro judicial candidates on the general election

ballot.

______________________________________________________________________________

Table 8. Campaign Donations for Metro and Non-Metro Judicial Candidates in 1998
Nonparisan General Election

Judge Sum Mean Number

Metro $1,626,061.23 $ 52,453.59 31
Non-Metro $1,219,480.14 $ 26,510.44 46

All $2,845,541.37 $ 36,955.08 77

t= 3.23 df= 49.6 p< 0.002

Source: Author's Calculations from State Ethics Board data.

______________________________________________________________________________

Conclusions

Oklahoma can simply let judicial elections become more conflictual, expensive and ugly.

The consequence will be greater judicial turnover and less public trust and confidence. The

alternative is to reduce judicial electoral conflict. Reform will involve modest changes and

tinkering, rather than sweeping change. Some proposals will not work.

One might think bar, Supreme Court and legislative regulation of what judicial

candidates can do and say is a possible reform. This will not affect third-party ‘information’

campaigns, such as organized by StateSource, however. Third parties are protected by free

speech rights as may be the rights of judicial candidates to speak out, even in violation of judicial

canons. The ability to enforce such campaign rules is also in question. It seems fanciful that a

vote of the people in an election will be overturned by a Bar Association committee or a panel of

judges removing an elected judge for campaign violations. The lesson from partisan races is

instructive. Most of us would be hard pressed to document any elected official in America
 24

removed from office for campaign violations. Few of us would have any trouble documenting

egregious rule violations, however. Why should judges prove an exception to this pattern?

There is also a fairness question. Limiting campaign donations stifles the voices of the

many who pool smaller amounts and strengthens the voices of the few willing and able to spend

from personal fortunes. Making candidate campaigns too difficult will simply shift more money

and effort into unregulated ‘informational’ campaigns. It may prove possible to limit attorney

contributions. But that would be unfair if it is not also possible to regulate the campaigns of

groups such as ‘Oklahomans for Jobs and Economic Growth,’ and ‘Oklahomans for Judicial

Excellence.’ Attorney contributions balanced those campaigns.

Likewise Deborah Shallcross, 1998 candidate for District Judge in Tulsa County,

carefully reported her donation sources and expenditures as did her opponent. A third party

‘information’ campaign against Judge Shallcross by a disappointed litigant purchased advertising

and otherwise campaigned. This anti-Shallcross ‘information’ campaign gained considerably

more visibility in the Tulsa media than either candidate campaign. The source of money spent in

the anti-Shallcross third-party ‘information’ campaign was not reported or regulated. Under

current interpretations of freedom of speech, it cannot be regulated or controlled. Limiting

Deborah Shallcross’ ability to raise and spend money, while not controlling those campaigning

against her, is possible but unfair both to the candidate and to the public.

A second strategy is to provide reliable and trusted information to voters. Judicial

evaluation commissions have been established in several states and Oklahoma has started the

process as well.36 For Oklahoma judicial evaluation poses two problems. The first is funding.

The legislature has enormous competition for limited funding and evaluation can cost into the

hundreds of thousands of dollars. The second challenge is the nonpartisan elections. Evaluating

36
See Kevin M. Easterling and Kathleen M. Sampson. 1998. Judicial Retention Evaluation Programs in
Four States: A Report with Recommendations (Chicago: American Judicature Society); Bob Darcy and
others. 1998. Oklahoma Judicial Evaluation Commission Survey (Stillwater: Oklahoma Judicial
Evaluation Commission).
 25

judges running on their records in a retention election is appropriate. Evaluating an incumbent

judge in a nonpartisan election poses problems. Is it fair to evaluate one candidate and not

another? How can useful and fair information be provided on each candidate, one an incumbent

and one a challenger?

The third strategy is to reduce judicial electoral exposure. A judge that is not on the

ballot need not raise money or campaign and the motive to campaign against him or her is

reduced to close to zero.37 Reducing electoral exposure can be done in several ways.

Terms can be increased. In Oklahoma trial judges serve four years. Increasing the term

to six years reduces the number of judicial elections by one third, increasing the term to eight

years reduces the elections by half.

Oklahoma can take cognizance of social and structural differences within the state. The

metro areas of Tulsa and Oklahoma City have more judicial contests and the non-metro areas far

fewer. Changing District and Associate District Judge selection to commission selection, as is

done for metropolitan areas in Missouri and as is done for Oklahoma appellate judges, will

eliminate judicial contests in areas where they are most likely while leaving the relatively

quiescent non-metro areas untouched.

If we use the 1998 elections as a base, there were forty-one contests and a total of one

hundred forty-eight seats. Putting metro area District and Associate District Judges on the

retention ballot would reduce the number of contests by sixteen. Extending terms to six years

would reduce the non-metro area contests by one third.. Together, putting metro-area judges on

37
Edward McChesney Sait quotes several turn-of-the Century speeches and arguments on the virtues of
electing state judges reminiscent of the rhetoric heard in Oklahoma a century later. See American Parties
and Elections Revised Edition (New York: D. Appleton-Century, 1939) pages 683-7. Sait, quoting Walter
Lipman, refers to the arguments as the "delusions of 'mystical democrats' " (page 689).
 26

the retention ballot and extending terms to six years would reduce the number of nonpartisan

judicial contests by almost sixty percent.38

Solutions that have eluded others are unlikely to be found in Oklahoma. Campaign

spending and fund-raising are difficult to regulate. The problem is national and proving

intractable. StateSource, Oklahomans for Judicial Excellence, Citizens for Judicial Review, and

Oklahomans for Jobs and Economic Growth failed in 1996 and 1998. Others will follow.

Election exposure can be reduced, however. Increasing judicial terms and moving races with

high potential for controversy to the retention ballot are two methods that will reduce electoral

conflict while leaving the judicial system itself relatively unchanged.

38
Starting with the 1998 base of forty one contests, eliminate the 16 metro area contests and one-third of
the non-metro area’s 25 contests (8) a total of 24 or 58% of the 41 contests are eliminated.
 Figure 1. Appellate Retention Elections 1968 - 1998

90

85
Vote = 1209.291 - 0.57615(Year)
r = -.83, n = 102
80
%Yes for Retention

75

70

65
Parks

60
Source: R. Darcy calculations from 58%
Oklahoma State Election Board data predicted
Rapp
55
Kirksey Nix
(excluded)
50
1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000
Year

Appellate %For 1998 Kirksey Nix upper .05 CI lower .05 CI