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The Business Council of Alabama (BCA), an organization made up of state Republicans and business figures, hires political consultant Karl Rove of Texas to help elect a slate of Republican candidates to the Alabama Supreme Court. Alabama’s Supreme Court has been comprised of Democrats for over a century. However, Rove worked to get a slate of Republicans elected to the Texas Supreme Court a few years ago, and the BCA feels he can do the same thing in Alabama. Of the four Republican candidates for the high court, the most important is retired Judge Perry O. Hooper, an icon among Alabama Republicans. He runs against Democratic incumbent Ernest “Sonny” Hornsby. Until now, judicial races in Alabama have been what Atlantic Monthly reporter Joshua Green will later call “low-key affairs,” with almost no campaigning and judicial candidates often just passing the seats from one to the next. Democrats often ran unopposed for the positions.
Statewide Campaign, 'Jackpot Justice' - Rove brings a harsh, confrontational strategy, characterizing Democrats as pawns of trial lawyers and telling voters tales of outrageous verdicts. Rove has Hooper and the other candidates focus on a single case, that of a wealthy Alabama doctor who sued the car manufacturer BMW after discovering that his new car had been damaged by acid rain before delivery and repainted, diminishing its resale value. The trial revealed that BMW had done this many times before, and rewarded the doctor with $4 million in punitive damages. Alabama Republican political consultant Bill Smith, trained by Rove, will later say: “It was the poster-child case of outrageous verdicts. Karl figured out the vocabulary on the BMW case and others like it that point out not just liberal behavior but outrageous decisions that make you mad as hell.” Hooper and the other judicial candidates campaign relentlessly throughout the state, harping on the case as an example of “jackpot justice” perpetuated by “wealthy personal-injury trial lawyers.” (Green will write that Rove coined those phrases and will use them effectively in other races and other areas.) Rove is also successful at convincing conservative Democrats to abandon their traditional support for Democratic candidates and vote for his Republican candidates. Rove also uses targeted, nuanced language to attract conservative voters. His candidates attack “liberal activist judges” and present themselves as “people who will strictly interpret the law and not rewrite it from the bench.” A Rove staffer will later explain that the term “activist judges” motivates all sorts of people for very different reasons. Green writes: “If you’re a religious conservative, he said, it means judges who established abortion rights or who interpret Massachusetts’s equal-protection clause as applying to gays. If you’re a business conservative, it means those who allow exorbitant jury awards. And in Alabama especially, the term conjures up those who forced integration.” The staffer continues, “The attraction of calling yourself a ‘strict constructionist’ [as Rove has his candidates label themselves] is that you can attract business conservatives, social conservatives, and moderates who simply want a reasonable standard of justice.”
'Dialing for Dollars' Television Ad - Rove highlights the fact that the Democratic justices routinely solicit campaign donations from trial lawyers, while downplaying the Republicans’ solicitations from business interests. He airs one particularly damaging “Dialing for Dollars” television ad, depicting a lawyer receiving an unwanted telephone solicitation from an actor portraying Hornsby. The ad implies that Hornsby will intervene on a case the lawyer has pending. The ad draws considerable attention and criticism, and is featured on NBC Nightly News. The campaign has the desired effect, and the race begins to tighten. Rove escalates, filling the airwaves with negative ads in the last two weeks of the campaign.
Recount, False Stories - When the results are tallied from the November 9 election, Hornsby wins the race for chief justice by an unofficial tally of 304 votes. Rove immediately calls for a recount. A former Rove staffer will later say: “Karl called the next morning. He said: ‘We came real close. You guys did a great job. But now we really need to rally around Perry Hooper. We’ve got a real good shot at this, but we need to win over the people of Alabama.‘… Our role was to try to keep people motivated about Perry Hooper’s election and then to undermine the other side’s support by casting them as liars, cheaters, stealers, immoral—all of that.” Rove successfully obtains the recount, and places campaign workers in each of the polling places to observe the counting, harass the election officials, and find evidence of “voter fraud.” Some legitimate errors are uncovered, such as a probate judge in one county erroneously excluding some 100 votes for Hooper, and voting machines in two other counties failing to tally all the votes. Rove spreads false stories throughout the state about poll watchers being threatened with arrest, probate judges locking themselves in their offices and refusing to meet with campaign workers, votes being cast in absentia on behalf of comatose nursing home patients, and Democrats caught in a cemetery writing down the names of dead people in order to cast votes for them by absentee ballot. On November 12, Hooper declares in a press conference, “We have endured lies in this campaign, but I’ll be damned if I will accept outright thievery.” By November 21, the unofficial tally has Hornsby ahead by only nine votes.
Absentee Ballots Challenged in Court - Hornsby’s campaign fights to include some 2,000 late-arriving absentee ballots that had been excluded, and the campaign goes public with the claim of a man who says his son, serving overseas in the military, is in danger of having his absentee ballot not counted. A Rove staffer will later say: “The last marching order we had from Karl was: ‘Make sure you continue to talk this up. The only way we’re going to be successful is if the Alabama public continues to care about it.’” Initially, a judge rules that the absentee ballots should be counted, and Hooper and Rove, knowing the absentee ballots will give Hornsby the votes he needs to win, take the case to federal court while Rove shellacks the state with advertisements accusing Hornsby of trying to steal the election. The Hooper campaign files lawsuits against each and every probate judge, circuit clerk, and sheriff in Alabama, alleging discrimination. The Alabama Supreme Court, stocked with Democrats, orders the absentee ballots to be counted, while the federal court continues to consider the matter.
Republican Declared Winner - In October 1995, a federal appeals court rules that the absentee ballots cannot be counted, and orders Alabama to certify Hooper as chief justice. Hornsby’s campaign appeals to the US Supreme Court, but the high court refuses to overturn the verdict. With the absentee ballots discarded, Hooper wins the vote tally by 262 votes. Hooper will later tell a reporter, “That Karl Rove was a very impressive fellow.” (Green 11/2004)
Adam Skaggs, an attorney for the Brennan Center for Justice, writes that the controversial Citizens United decision by the Supreme Court (see January 21, 2010) is going to have a huge impact on judicial elections in 2010 and beyond. The record for the costliest judicial race in US history was set in a 2004 Illinois contest between Lloyd Karmeier and Gordon Maag, competing for the bench in the state’s 5th Judicial District. Between them, they raised and spent almost $9.4 million, more than double the previous national record, and an amount Karmeier later called “obscene.” Special interests on both sides of the election became heavily involved, with Karmeier’s corporate donations from such organizations as the US Chamber of Commerce and State Farm Insurance winning out over Maag’s donations from trial lawyers. After the election, Karmeier cast the deciding vote in a case that saved State Farm $500 million. An Ohio labor official said in commenting on the often-heavy spending on judicial races, “We figured out a long time ago that it’s easier to elect seven judges than to elect one hundred and 32 legislators.” The Citizens United case, Skaggs writes, will undoubtedly lead to corporate spending in judicial races like never before. That spending, he writes, “threatens to further erode the judiciary’s independence.” Even former Supreme Court Justice Sandra Day O’Connor has said that “Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.” Skaggs cites a number of races that will likely be targets for big corporate donors:
Illinois Supreme Court Chief Justice Thomas R. Fitzgerald is a probable target after striking down a 2005 law that placed caps on medical malpractice claims; Skaggs predicts the same corporate interests that helped Karmeier win a judicial seat will attempt to defeat Fitzgerald.
In Alabama, three seats currently held by Republicans are contested. One of these, Alabama Supreme Court Justice Tom Parker, is the likely recipient of heavy corporate funding, because, as Skaggs writes, groups like the Business Council of Alabama want Parker on the bench to protect conservative interests on economic issues. That corporate spending will likely outstrip spending on Democratic candidates, which will come primarily from liberal judicial groups and the state’s Democratic Party.
A 2006 study by the New York Times showed that judges routinely decide cases involving campaign donors, and in 70 percent of those cases, find in favor of those donors. One judge in the study voted on behalf of his donors 91 percent of the time. In Nevada, judges routinely accept huge donations even when running unopposed, often from donors who have cases pending before those judges. Nevada voters will decide in the November elections whether to scrap the system of an elected judiciary and move to an appointment system. Skaggs recommends that states should adopt public financing systems for judicial elections (four states—New Mexico, North Carolina, West Virginia, and Wisconsin already do so) and eliminate entirely the concept of outside interests donating to judicial campaigns. He recommends stricter disclosure rules, so that the public knows who is contributing how much to judicial candidates. And, he writes, “states should institute new disqualification regulations to ensure that, if a judge is assigned to hear the case of a major campaign supporter, he or she must step aside and let a wholly impartial judge preside.” Otherwise, he writes: “The very legitimacy of the courts depends on the public believing that judges will treat every party without bias or favor. If, in the Citizens United era, states don’t adopt public financing and strong disclosure and disqualification rules, the judiciary’s credibility will dissolve—and quickly.” (Skaggs 4/5/2010)
A new report by the Brennan Center for Justice shows that just three “independent” corporate political organizations outspent the US labor movement in judicial elections for 2009-10. The report, entitled “The New Politics of Judicial Elections 2009-10,” shows that three corporate interest groups—the Ohio Chamber of Commerce (Partnership for America’s Future), the Business Council of Alabama, and the Illinois Civil Justice League (JustPAC) outspent the US labor movement 13-1 in trying to influence state Supreme Court elections. Together, the three groups spent $3,554,445 on activities involving judicial elections. In total, organized labor groups spent $261,4230. Labor unions have always contended that they could not spend nearly as much on election activities as corporations. (Skaggs et al. 10/2011 ; Millhiser 10/27/2011)
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