On Tuesday night, like anyone else with an unhealthy interest in politics, I was of course watching the federal races. But the one I really cared about – the one that was likely to have the most direct impact on my daily life and career – was the Second Judicial District Court Department 10 race I wrote about a few weeks ago. If you missed that piece, the recap is this — a billionaire casino owner was the nearly sole funder of a judicial candidate against a sitting judge who had ruled against him in an ongoing case.
Sadly, it turns out you really can buy justice, if you have enough money and can find a candidate willing to run under such circumstances. Although the votes aren’t all in, it appears Kathleen Sigurdson is on track to defeat the highest rated general jurisdiction judge in Washoe County, Elliott Sattler (to whom I donated $700), even though she enjoyed next to zero support from the legal community.
There is nothing illegal per se about buying a judge this way. Judicial elections are name recognition contests, and that means expensive advertising. Although we supposedly have laws which limit any single individual from donating too much to a campaign, that’s easy to work around if you have enough separate legal entities to individually donate money to your candidate.
(Buying a judge is gross, but it does speak to the foolish pointlessness of attempting to limit First Amendment activities under the guise of “campaign finance reform.” Invariably, the very wealthy will find ways around any rules, and those workarounds always have the secondary effect of making those donations less transparent then they otherwise would have been. And even where such laws are enforced, the politicians who benefit never seem to suffer.)
But while it isn’t illegal, it is by any reasonable definition corrupt. The buying and selling of politicians is certainly nothing new, and that includes judges when they’re forced to also be politicians. The damage to the entire justice system when it’s done with judges, though, is uniquely immense. Other judges will certainly take note, and one must worry whether or not some might make adjustments in their interpretation of law based on fear that they, too, may lose their job to a wealthy and vindictive litigant. Every attorney appearing before such a judge must wonder if pay-for-play applies to them, too, come the next election cycle. Every party to a lawsuit or criminal defendant will be forced to wonder the same thing.
Of course, billionaires can buy billboards and TV spots, but ultimately the voters have to decide. But judges are difficult to pick if you aren’t a lawyer, or don’t understand just what actually makes a good judge. Enter partisan machine politics, where party affiliation is everything. The Washoe County Democratic Party specifically promoted Ms. Sigurdson on that basis alone, too tribal and too foolish to know (or perhaps just not caring) that they were helping a billionaire buy an election. This, too, is its own form of corruption, and no doubt a big part of the reason she won as Washoe County trended so very blue. Shame on the judicial candidates who allowed themselves to be promoted as partisans, and shame on the voters who did no further research than “D” vs “R”.
Political tribalism is terrible for more reasons than can be listed in a single column, but its ability to hand-wave away incompetence or even obvious corruption is among the very worst. Our system of government to some degree relies upon trusting people you sometimes disagree with to protect your basic civil liberties, from the ballot box to free speech to protecting your private property and ability to make a living (yes, that too is a civil right). And so when that trust is abused and frayed, the government itself will eventually begin to unravel in ways that can’t be fixed. This is a very dangerous thing.
There is much hate and discontent about the President’s insistence that the results of Tuesday’s election were a result of fraud. Of course, many of those huffing and puffing were noticeably silent when vast swaths of Democrats did the same thing for the better part of the Trump presidency, in the form of the Russian Collusion hoax, or when investigation into that hoax revealed some incredibly disturbing activity by officials within the Obama Administration against the Trump campaign. If you think Trump’s comments are uniquely terrible, however, the double standard applied when Democrats do that sort of thing (and they’ve been at is pretty consistently since at least 2000) somewhat weaken one’s case.
None of this from either side is particularly helpful or healthy, but it would also be nice if government officials didn’t provide us with so much fertile ground for suspicions to grow in the first place. In the past year, we have seen governments toss out our most venerable protections against abuse of our civil rights under self-proclaimed emergency powers. Gov. Sisolak and his bureaucrats simply make laws on a whim, without waiting for the Legislature, laws which restrict free speech and free assembly, the right to own and operate a business, and the right to worship according to the dictates of your particular creed. Due to the governor’s orders, courthouses have been closed or reduced to substantially limited operation, denying people their rights to try their disputes or assert their innocent in front of a jury (this is starting to change, but we cannot continue to keep up with the needs of justice with so little courtroom capacity). These new rules are often arbitrary (casinos opened in June, but bars were shuttered for months longer) and enforced inconsistently, in ways which suggest that enforcement is driven by politics, such as where Trump rallies are fined but BLM protesters are not.
And then there is frankly the issue of competence. Our unemployment system is still a total mess. The attempt to create an entirely new voting system mere months before an election was foolish in the extreme, not to mention unnecessary (if you can go to the grocery store, you can certainly go to a polling place), and the miscommunications and delayed counting of ballots didn’t exactly give one warm fuzzies that no mistakes would be made in incredibly tight races, whether or not there were actual shenanigans going on.
Add it all up, and people stop trusting the process is fair and/or reliable, and they are not without reasons to lose faith. If Nevada Democrats want to fix that, Democrats in both local governments and in the Legislature must set aside blind partisan loyalty to the governor, and start asserting themselves as a real check against Sisolak’s excesses. They must understand that the mere appearance of impropriety is enough to sow (and righteously earn) significant distrust in our institutions, and they cannot ignore legitimate concerns over civil rights and election security just because those concerns come from Republicans. We should treat every election official like casinos treat their blackjack dealers – on camera, hands on the table, with layers of extra and very visible security thrown into the mix. Merely hand-waiving away worries or even allegations of electoral misconduct, ignoring them altogether, or actively censoring anyone who raises such concerns will only fuel and exacerbate suspicions across the board.
The best that can be said about this election is that no one really won. There was no wave, red or blue, merely a few local ripples. Both Republicans and Democrats gained some surprising victories, both in Nevada and across the nation, but neither can honestly claim any sort of mandate. The polling disasters are but one reminder of the media’s substantial fallibility (and I’m being generous here). Gridlock will continue, which is frankly better than the alternative. Donald Trump, struck down, will become more powerful than the left can possibly imagine as a cultural driver, fundraiser, and an object lesson that fighting to win will get you a hell of a lot more votes than the Romney/McCain model of losing with gentile grace. (Take note, you feckless and powerless Nevada Republicans looking for some local leadership — combine Trump’s work ethic, fearlessness, and stridency with a less off-putting personality, and the sky’s the limit.) The political realignment in which the GOP finally learned to gain ground and expand its appeal to minorities will continue, and benefit everyone far more than the status quo ante where those populations were ignored by one party and taken for granted by the other.
But like all elections, we are once again provided with opportunity — and perhaps uniquely so due to this one’s closeness. With battle line shifting and both parties facing a great deal of internal friction from various internal factions, now is the time to make some real, substantive changes to lower the temperature and restore faith in our government institutions.
President Trump’s lawsuits in various states will go forward, and Democrats should embrace them. Let’s use that adversarial process to truly audit our systems, putting all the cards on the table. It will either definitively put to rest allegations of fraud, or it will uncover deeper problems. Let’s make modifications to our election laws now (through the Legislature), such as insisting that ballots be received by election day and limiting vote by mail to only those who truly need to vote absentee. Implement voter ID, the only argument against which is the ironic racism and condescension of identity politics hucksters who falsely assert black and brown people are less capable of obtaining photo identification.
Let’s insist that legislators be the ones to pass laws. It’s long past time for Gov. Sisolak to give up his claimed emergency powers. If changes need to be made to address COVID issues, special sessions can be called. Legislative Democrats especially need to take up the responsibilities they claimed to want when they ran in the first place. Constructively pushing against the governor – regardless of party affiliation – will lead to better policy in the end.
And there is no better time than now to change how we select our judges, and no better argument for appointing them than the Sattler/Sigurdson race. In a republic, the rights of the individual must be protected from the excesses of democracy (the tyranny of the majority is no less a threat to civil rights than dictatorships, as any victim of Jim Crow laws could have told you), and if judges can be swayed by the mob or careless partisan machinery, none of our civil liberties are safe. Judges must be appointed (even by governors of questionable judgment), and in the meantime, judicial races must earn more attention and transparency from more media outlets than just this one. Political parties also have a responsibility, and must be far more cautious about their non-partisan race endorsements than merely looking up a party identification.
Our shared goal should be to make government boring again. The only way to truly restore faith in our government across the political divide in the long term is to build a government which by its actions and its transparency earns that faith back. The same is true of our media outlets and cultural institutions, here and around the nation, which have squandered the public trust as well. This requires humility and introspection on all sides and from all quarters, and a true desire to improve (rather than just win elections). Simply “accepting” or “getting over” any given election result is not the way to make advances or build unity, and you can be certain that anyone engaged in that type of rhetoric is perfectly happy with the current dysfunctional situation. Too many of our institutions have become corrupt or broken in ways large and small, legal and illegal, but they don’t need to stay that way. We have only to choose to look at what we may not want to see, put party affiliation on the back burner, and gather the will to improve our government processes for everyone.
Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected].