Justice William O'Neill
Testimony Before the Ohio Constitutional Modernization Commission
December 12, 2013

Good morning Speaker Batchelder, Minority Leader Sykes, and members of the Ohio Constitutional Modernization Commission. My name is Justice William O’Neill. I am an Associate Justice of the Ohio Supreme Court and it is my pleasure to address you about the way we elect judges in Ohio. I thank you for the invitation.

I believe I may be one of the most qualified people in Ohio to discuss this topic by virtue of the fact in the last 20 years I have run for judicial office six times. I have never lost a primary and I have won three out of six general elections. For the baseball fans here that means my batting average would be 500 and lead to a pretty good payday.

I am in my first, and under current law, my only term as a justice of the Ohio Supreme Court. In addition I am the first candidate to substantively acknowledge and challenge the corrosive effect of money on the perceived integrity of the judiciary.

In the wake of Citizens’ United and the Supreme Court of the United States declaring that corporations are people and that money is speech entitled to First Amendment protections, I stand before you today as a realist. I freely acknowledge that what we do here today is not going to eliminate peoples’ ability to express their opinions with their checkbooks. It has been labeled free speech by the United States Supreme Court and I accept that finding.  However I don’t believe your inquiry should end there.

Of all the institutions of government in Ohio, the Ohio Supreme Court clearly has the most stability when it comes to the terms of its members. Ohio Supreme Court justices serve the only six year terms in state government, and it is not uncommon for an elected justice to serve for 20 years and beyond. Before 2010, the last time a sitting supreme court justice had been defeated for re-election was 1986. Indeed one of the longest-serving state officials in Ohio history was Chief Justice Carl Victor Weygandt, who served for nearly 30 years.

History has also shown it is not unusual for several justices to serve together for decades. However, we are entering a period of time that will be an exception to this trend because of a combination of the aging process and the unique prohibition which bars judges from seeking election beyond their 70th birthday. In short, while the 2014 election is rapidly approaching, it is the two cycles which follow that will dramatically alter the makeup of the Ohio Supreme Court. In 2016 Justices Lanzinger and Pfeifer, having reached their 70th birthdays, will be retiring, after serving a combined 35 years ... much of it together. And two years later, Justices O’Donnell and I will have reached our 70th birthdays and will therefore be ineligible for re-election as well. Simple math demonstrates that four new justices are on the horizon, and two of the justices running in 2014, Justices Kennedy and French, are both brand new to the court in 2013. In short, when the Ohio Supreme Court opens for the first session of court in January of 2019, five years from today, only the Chief Justice will have more than six years of seniority. That, of course, assumes that the Chief Justice decides to seek re-election and is successful. It is without debate that your timing for reviewing the way we elect Justices could not be better.

In light of this wave of change that is coming our way, I write to share my ideas about ways that we can improve the way we elect judges in Ohio. I am one of the many Ohioans who firmly believe that having a state judiciary that is accountable to the voters is the best way to safeguard home rule and to maximize local control and problem solving.  I think it is time for us to consider how we can improve upon our strengths and shed what no longer serves us well.

I am thankful to our Chief Justice for bringing forward a set of ideas on this topic earlier this year. If you have not done so already, I would recommend that you visit the website she has created, www.OhioCourts2013.org, where there is a white paper detailing the history of judicial elections in Ohio and proposing the Chief’s eight ideas for consideration.

Chief Justice O’Connor is absolutely right when she says that Ohio needs to strengthen its judicial election process.  It has been 45 years since the passage of the Modern Courts Amendment. This Commission has the opportunity to improve upon the reforms adopted in 1968.

As I have said earlier, there are some propositions the Chief Justice has suggested with which I am in agreement.   Specifically, the suggestion of moving judicial races to odd numbered years has a great deal of merit; and in my opinion a thorough review of the so-called non partisan nature of judicial races is long overdue. I also support her call for pursuing efforts to make information about judicial candidates more widely accessible to voters so they can make informed choices.

However, in addition to the Chief Justice’s ideas, I want to talk to you today about another important aspect of judicial election reform that I feel must be addressed. It is my firm belief that no thorough analysis can afford to ignore the question of fund raising.

First, I would like to address the constitutional issue that has been raised by the Chief Justice as it relates to the proposal on the timing of judicial elections. This is a proposal that has constitutional implications.  According to the Ohio Constitution (Article XVII, Section I) and Ohio law (R.C. 3501.01) candidates for judge above the municipal court level who are on the ballot during a “regular state election” are elected during even numbered years. Candidates for judge who are on the ballot during a “regular municipal election” are elected during odd numbered years. Therefore a majority of judicial elections are held in the even years and they are never, by design, the marquee race in any election year. In one cycle they share the stage with the presidential races; and two years later they are the often-forgotten third branch of government as the governor, attorney general, secretary of state and a host of other executive and legislative races dominate the public’s limited attention span.

Let me give you two examples that illustrate my point and the problem. I was just elected in 2012 and therefore I and my opponent Justice Robert Cupp spent a good deal of that year campaigning statewide alongside the teams advocating the candidacies of Governor Mitt Romney and President Barack Obama. The “noise” for lack of a better word, was deafening, both in the field and on the airwaves. The top vote-getter from the judicial branch of government that year was the re-election campaign of my colleague Justice Terrence O’Donnell. He had an opponent in State Senator Michael Skindell, and between the two of them, they were extremely well known political figures in Ohio having both been elected and re-elected to various offices for over 20 years.

At the end of the day, however the number of combined votes cast in the 2012 Presidential race for Obama and Romney was 5,489,146. On the other hand the number of combined votes for Justice O’Donnell and Senator Skindell was 4,057,395. As you can readily see, a full 1,431,751 voters -- or 18 percent -- participated in the selection of the next President of the United States, yet they failed to cast a vote to determine the makeup of the Ohio Supreme Court. This drop off in the “down ballot” judicial races is a well known phenomenon that is also addressed in the Chief Justice’s 8-point proposal.

This issue is not limited to presidential election years, however. And as demonstrated in 2006, the drop off seems to have no relationship to politics. As you will recall in 2006 Governor Strickland was swept into office along with Democrats running for all but one executive office in the state. In short, Strickland’s “dream team” captured the governor’s office and the races for the secretary of state, the treasurer, and the attorney general. Yet both myself and Senator Ben Espy, the Democratic candidates for the high court that year, lost the election as the winds of change favored one party over the other. In other words, there was no perceptible linkage between the winning political party and the elections to the Supreme Court that year. A simple review of the votes cast for governor that year demonstrates the “shadow effect” is not limited to presidential years. Governor Strickland and Kenneth Blackwell’s combined vote was 3,909,836; while the top combined vote for the Supreme Court race, again including Justice O’Donnell, attracted only 3,244,960 voters. As you can see, a full 18 percent drop off was demonstrated that year. Once again, we are talking about voters who actually do participate in the electoral process; who do show up and cast a ballot; and who do not have either the knowledge or the willingness to venture into voting in the vitally important state’s top judicial races.

Studies across the country demonstrate that this drop off in judicial races consistently occurs at all levels from trial courts to state supreme court races.

In summary, I agree with the Chief Justice and believe it is wholly appropriate that we consider moving all judicial elections to the odd-numbered years to permit the voters the ability to focus on this important task. She also proposes addressing drop off by moving judicial races to the top of the ballot. While this idea is intriguing, it is an issue I will defer to others to evaluate.

Next, I want to address the Chief Justice’s proposal on eliminating partisan primaries in Ohio.

I believe it is time we address the absurd way we “label” our judicial candidates in Ohio. By statute, judicial candidates are required to run in partisan primaries if they want to be elected as partisan candidates. Then, after they are successful in becoming either the Democratic or Republican nominee, we shroud them in the mystery of a “non-partisan” race, which is an oxymoron at best. Ohio is the only state in the nation with this odd arrangement.

While I agree with the Chief Justice that this is an important issue to be addressed, I respectfully disagree with her conclusion that the solution is to eliminate party affiliation from the primary ballot. Rather in the spirit of full disclosure I believe we should add full information on partisan affiliation to the general election ballot.

The reality is that both political parties spend millions touting the name recognition and qualifications of their nominees. Yet, when the voter gets into the secrecy of the voting booth they are left to guess who the D is and who the R is. That is a classic demonstration of voter confusion designed into the process. Knowledge is power, and the voters have a right to know that relevant fact. If we are going to have partisan elections, let’s at least have them be intellectually honest and call them what they are.

As I mentioned at the beginning of my presentation, no discussion of judicial election reform is complete without a discussion of fundraising. I would propose we begin exploring public financing of judicial races with the source of funding coming from court costs. In Ohio on an annual basis there are more than 1.4 million new cases filed every year, excluding traffic tickets. I would suggest that court costs be increased by $10 per case which would create a “judicial education fund” in the neighborhood of $10 million annually. I am acutely aware that source of funding is already over-burdened, but I believe an argument can be made that the judicial selection process should be at least partially funded by those who use the court system.

As communication costs continue to increase, the state should make a quality investment in a system which actually educates the voters as to the real qualifications of those who seek the office of judge or justice. A simple solution would be to allocate funds to candidates who are selected by the primary process so that they can get their message out effectively while avoiding the demeaning and ineffective method of turning our judges into beggars in the marketplace as they raise the funds to become known. As an example, $1 million could be allocated to a Supreme Court candidate; and $250,000 to a Court of Appeals candidate. In return, the candidates would be required to sign a pledge to neither solicit nor accept funding from any other source. To protect freedom of speech, as an idea, the system could permit any candidate to opt out of the system, and their share of public funding would go to their opponent.

Along with this proposal, I would suggest that an independent commission be created, and funded, with the task of educating the public about the real qualifications and experience level of the candidates. Possibly they could follow and improve upon the work of judge4yourself.com which has dramatically improved judicial voter education in the Cleveland area. With imagination, and money, it is clear that the mystery currently surrounding the qualifications of judicial candidates could be reduced. Let the voters have more information and you go a long way to increasing participation in this vital process.

In 2006, with guidance from the United States Supreme Court I was successful in Federal Court in establishing the right of judicial candidates to express views on general subjects. However, I truly believe a voice in the wilderness is not the medium by which we should be selecting judges. Voters need to know what a candidate has done, what their legal experience level really is; and how they have addressed real issues in their professional life. This is not accomplished with a 60 second sound bite, and it is unfortunate that for the most part, that is the primary source of information available to voters today. An independent commission for voter education would have the dual benefit of increasing voter awareness about their candidates and increasing public confidence that their judges have not been paid for by special interest.

Admittedly judicial races are in the boring category for most Ohioans, however, not for me. I am honored to have run in six judicial elections in the past 20 years. I am grateful and humbled to have been elected a justice of the Supreme Court of Ohio. And I thank you for your attention this morning. I would be happy to answer any questions you may have.

This presentation will be posted on the Supreme Court of Ohio website which can be found at the following address: http://www.supremecourt.ohio.gov.

Court News Ohio will also post a story. It can be found at the following address: http://www.courtnewsohio.gov.

Further inquiries can be directed to the Supreme Court of Ohio Office of Public Information 614.387.9250.