Politics, election denial encroaching on judiciary

Correction: Corrects the title for Doug Cole to say he is a former judicial appointment commissioner and a current commissioner on the Judicial Performance Review.

Judges in Maricopa and Pima counties don’t want to run retention campaigns. But as political polarization and election denial draw closer to the judiciary, they may have to.

Judicial sources feared the merit selection and retention system used in Arizona’s largest counties to elect judges, which largely dodges partisan pitfalls, was already at risk of further politicization based on an unusual 2022 retention election.

But the threat looms larger as distrust in elections bleeds into the judiciary, and judges tasked with ruling on election contests or other controversial cases are caught in the crossfire.

Now, political consultants and judicial commissioners are slated to advise judges to prepare to form campaign committees in 2024 in an upcoming judicial conference. But they warn they must do so within the strict confines of judicial ethics.

“It’s a delicate, little minefield that they have to navigate,” said April Elliot, executive director of the Arizona Commission on Judicial Conduct and staff director for the Judicial Ethics Advisory Committee.

“They should be prepared to do this, and go ahead and do it, whether they think they’re going to be a target or not.”

Past retention elections in Maricopa, Pima, Pinal and Coconino counties have gone by without widespread fervor or smear campaigns against judicial officers up for retention.

Voters often pass through the list of judges running the length of the ballot without much thought, or often no thought at all, as evidenced by the Judicial Performance Review’s slogan “Finish the ballot.”

But the 2022 election saw a small handful of coordinated campaigns to oust judges over ideological differences. And some were successful.

Three judges were not retained by voters in 2022, though only one was deemed unfit for the bench by Judicial Performance Review.

Judicial sources now worry, with the successful expulsion in the 2022 election, more political groups will head campaigns against judges whose rulings or ideology run counter to their own.

And the fear is now exacerbated as a swell of election contests go to the courts and ardent supporters of losing candidates turn to the judges presiding over the cases.

Maricopa County Judge Peter Thompson, who is up for retention in the next election, ruled against failed gubernatorial candidate Kari Lake in the most recent installment of her election litigation, though he declined to sanction her attorneys.

A wave of Kari Lake supporters, including Rep. Rachel Jones, R-Tucson, have called Thompson “corrupt,” a “traitor,” and a “coward.”

David Becker, executive director and founder of Center for Election Innovation and Research and the Election Officials Legal Defense Network, noted claims of election corruption continue to fail in court.

“Every single time a court has said to a losing candidate put up or shut up,” Becker said. “They have done neither and they’ve had nothing but opportunities to present evidence over and over and over and over again.” Becker said.

Becker said the courts seem a logical next step for those who distrust elections.

“Of course, a court that requires a losing candidate to actually produce evidence, to actually make their case is a threat,” Becker said. “It’s natural that the judiciary as an institution would be attacked in the same way as election administration.”

Maricopa County Recorder Stephen Richer, who has remained a central mark for the election denial sect, drew parallels between the distrust in election systems and a growing distrust in the judiciary.

“You make it about people, you make it about that they somehow manipulate the process rather than administering the process,” Richer said. “And this judge, it was about him and his personal feelings and his background and loyalty to the country, rather than the neutral application of the law.”

Richer said what the laws and facts support are increasingly becoming an afterthought in lieu of insinuating political motive.

“We have to be very reticent, as a society, to impute motive or fraud with the system, because we don’t like the outcome,” Richer said. “We were pretty disappointed that the judge did not issue sanctions against Lake’s lawyers recently. But I think it would be destructive and reckless of me to say, ‘Well, that’s just because he’s a coward.’”

Elliot said the ethics commission had seen an uptick in complaints, with many tied to dissatisfaction with a ruling.

“It’s an adversarial system. One person’s going to walk out of that courtroom very unhappy,” Elliot said.

“And in this day and age, that certainly breeds a lot of more resentment than maybe it once did.”

She said, “I think that raw emotion is going to translate into, ‘We need to remove these people and appoint judges that (are) more aligned with our point of view.’”

Elliot, as well as Doug Cole, a former judicial appointment commissioner, a current commissioner on the Judicial Performance Review and COO of HighGround, and Jonathan Paton, a former state lawmaker, are speaking on a panel at an upcoming judicial conference to warn judges of the potential necessity to form a campaign committee and advise them how to do so in line with judicial ethics, rules and opinions.

Trial court judges are held to the same campaign contribution amount as legislative candidates, while Elliot expects appellate judges to see a contribution limit in line with statewide candidates.

Judges up for retention cannot endorse or oppose candidates, make speeches on behalf of a political organization, personally solicit or accept campaign contributions outside of campaign committees, or make any pledges, problems or commitments inconsistent with impartial performance of a judicial office.

Judges are allowed to issue “factually accurate” responses to any false, leading or unfair allegations made against them. And they can receive endorsements, but Elliot said they need to be wary of how those endorsements are perceived.

Unlike a traditional judicial election with clearly marked opposing candidates, judges will not know who emerges to oppose their bid to stay in office and noted the efforts to oust judges seen last year came fairly late in the election.

The panel at the judicial conference ultimately advises judges to be proactive ahead of the 2024 election.

“We do have a system that ultimately puts the choice to the voter,” Elliot said. “I just hate to see decisions and controversial cases being weaponized to remove a judge.”