Idaho’s Supreme Court justices sit atop the state’s third branch of government.
The people who serve in those positions are supposed to be nonpartisan.
So why does Idaho give considerable advantages to judicial candidates who are Republicans or who openly court Republican voters?
Four people are running to succeed retiring Justice Jim Jones:
▪ Rupert attorney Robyn M. Brody.
▪ Court of Appeals Judge Sergio A. Guiterrez of Nampa.
▪ Sen. Curt McKenzie, R-Boise.
▪ Deputy Attorney General Clive Strong of Boise.
If any of them secures a simple majority in the May 17 primary, that candidate wins outright.
If not, the two candidates with the most votes proceed to the Nov. 8 general election.
Of the six Idaho Supreme Court contests in the past two decades, only one produced a run-off. In 1998, former Attorney General Wayne Kidwell and Boise City Councilor Mike Wetherell emerged from a three-way primary race to face each other in the fall. Kidwell won. Wetherell later went on to serve on the District Court bench.
The other five Supreme Court contests were decided in a primary where:
▪ Fewer people show up.
For instance, about 173,000 people cast a ballot for governor in the 2014 primary versus almost 440,000 who voted in the November gubernatorial election.
▪ The turnout is decidedly Republican. In the last primary election, the GOP accounted for 85 percent of the votes. Contrast that with the 2014 general election, where Republican Butch Otter claimed about 54 percent of the vote.
▪ There’s a tremendous undervote in the judicial races. As a rule, about 10 percent of the primary election voters leave their judicial ballots unmarked.
Those advantages played out most notably in the 2000 Supreme Court race, where Dan Eismann made no bones about his political leanings. He even attended GOP Lincoln Day banquets. The Republican turnout surge in that year’s primary — and a last-minute independent campaign that smeared incumbent Justice Cathy Cilak as a pro-abortion rights liberal — proved insurmountable.
In fact, the only Democratic appointee to the Supreme Court who survived a primary election — former Justice Linda Copple Trout — faced a fringe Republican challenger in 2002. Even so, she had to settle for 62 percent.
Meanwhile, former 2nd District Judge John Bradbury saw his fortunes ebb and flow with the turnout. A one-time Democratic candidate for the Legislature, Bradbury ran for the Supreme Court in 2008 and came within 253 votes of upsetting incumbent Joel Horton. That year, enthusiasm for Barack Obama’s campaign swelled the Democratic slice of the primary electorate to a larger-than-normal 25 percent.
Two years later, when Bradbury challenged Justice Roger Burdick, the GOP turnout returned to its typical 85.6 percent and he got swamped by more than 28,000 votes.
Since then, the GOP has closed its primary election to anyone not willing to register as a member of the Republican Party. You don’t have to affiliate with the GOP to vote in the judicial portion of the ballot. As a practical matter, however, a closed primary just means fewer people bother to turn out.
What could be a more supportive environment for McKenzie?
He may not be known outside the voter-rich Treasure Valley. Brody can appeal for diversity and to her own Magic Valley. Guiterrez has a record on the bench and Strong can draw on a three-decade-long experience in state government.
But McKenzie has been elected seven times as a Republican and people know it.
That’s no way to elect an impartial jurist. Until Idaho resolves to settle all non-partisan judicial contests before the greatest number of voters in a general election, that’s the system we’re stuck with.