In judicial elections, state law favors one profession

As the 2022 judicial elections will soon be upon us, it is finally time to review an egregious oversight that affects the results in this state. Regardless of party affiliation, the hope for all voters is a safe, fair and free election. Judicial elections are somewhat of an anomaly, with friends and family often asking attorneys for their thoughts on the candidates. This is unfortunate, as the election of judicial officers carries great importance in our great state.

And there sits the problem… Elections Code 13107. The curiously drafted code section shows remarkable favoritism toward one profession, that of a government official, in particular a prosecutor. (In full disclosure, I ran for superior court judge twice, once having my proposed ballot designation of Police Commissioner struck down because it was a volunteer job and not a paid vocation.) In reviewing the statistics of past elections, one wonders if a prosecutor or government employee would ever lose. They don’t. They can’t. The reason is simple. Ballot designations. In fact, history and election experts reveal that the only thing that truly matters in a judicial election is the ballot designation, not paid slates, not lawn signs, not club endorsements, not even the use of an unnecessary campaign manager or advisor.

The election code limits a ballot designation to three words: Candidates for judicial office who are not prosecutors may only use, “[n]o more than three words designating either the current principal professions, vocations, or occupations of the candidate” Elections Code Section13107(b)(1)(C). As such, a private attorney can choose from “attorney” “attorney at law” or “lawyer.” However, a government employee is permitted to use “Deputy District Attorney, County of Los Angeles or “Deputy Attorney General,” a powerful and mighty ballot designation that is granted an exception to the three-word rule. For the record, no one is saying these are not honorable job positions. However, the inequity created makes for an unjust system. No attorney in private practice has even won a judicial election against a government employee. In fact, since 2012, of the 51 elected judges, none were nonprosecutors or nongovernment attorneys. In the 2020 election cycle, several victorious candidates spent zero money and sought zero endorsements but prevailed by virtue of their ballot designations.

How is this inequity resolved? The solution is very simple. All candidates running to become a bench officer should be limited to “attorney at law” “attorney” or “lawyer.” The only exception would be a judge or commissioner running for reelection as they have already been elected or appointed to the bench. The change already started a few years ago, as the Legislature amended the statute to forbid some of the abusive terms such as “Child Molestation Prosecutor” or “Gang/Homicide prosecutor.” That was a powerful first step, but the work is not done. Upon resolution of the election code deficiencies, judges can be elected on something more than ballot designations, like qualifications for example.

— David D. Diamond

State Bar Certified Criminal Law Specialist