Voters in certain states cast their ballots last November with greater confidence than ever before, especially in their assessment of judges seeking office.

Those citizens had the benefit of judicial voter guides created and distributed by family policy councils (FPCs)—state-level allies of Focus on the Family Action, a non-profit, non-tax-deductible cultural action organization chaired by Dr. James C. Dobson.

The FPCs first sent questionnaires to each of the candidates, and then published the results in hard copy form or on a Web site. The level of success varied by state, depending on the newness of the voter guide effort and the type of judicial elections involved, according to several FPC leaders interviewed by Citizen . Although more voter education on the importance of state judges may be needed, overall voter awareness and demand for such information appears to be gaining momentum.

Not all states elect judges. In the 39 that do, some hold contested elections with multiple candidates vying for the same seat, while other states use a combination of appointment and so-called “retention” elections (a simple “yes” or “no” on whether Judge X should be retained in his/her current position). Voting for judges in some states can be frustrating to the average voter, as most sitting judges and candidates for judgeships are completely unknown to them. In addition, state ethics rules for judges in many states operate as “gag” rules effectively prohibiting judicial candidates from speaking to voters on a meaningful level about judicial philosophy or legal issues.

But that is all slowly changing, thanks to a 2002 Supreme Court decision striking down Minnesota 's judicial gag rule as a violation of the First Amendment rights of judicial candidates. The victorious attorney in that landmark case, election-law expert James Bopp, Jr., has since won several more legal challenges against similar gag rules in Alabama , Kentucky , North Dakota , Alaska and Indiana , with litigation pending in Florida and Pennsylvania . These victories have set the stage for the increasing use of judicial voter guides in state races, although resistance from local bar associations and state supreme courts in charge of judicial ethics have made it slow going in some states.

Tennessee

The bar association resisted voter guide efforts by encouraging judicial candidates there to sign a pledge refusing to answer the judicial questionnaire sent out by the brand-new Family Action Council of Tennessee (FACT). The “pledge” made news all over the state and succeeded in publicizing the first-time judicial voter guide effort there.

David Fowler, executive director of FACT, expressed concern, however, not so much with the bar association's resistance but with the average voter's lack of interest in judges that he observed in his state.

“People in Tennessee are used to looking for legislative race voter guides, but haven't developed an interest yet in knowing about judicial races,” said Fowler, a former state legislator.

Iowa

Last year (2006) was the first year that the Iowa Supreme Court allowed judicial candidates to answer questionnaires, according to Chuck Hurley, the president of the Iowa Family Policy Center .

“Weeks before the election, our phone lines were jammed with calls from pro-family Iowans wanting to know how judges responded to our first judicial survey,” Hurley said. “It was very encouraging to hear from hundreds of concerned Iowans, not to mention the many more that checked our Web site to learn about the judges on the ballot.”

Iowa holds only retention elections. Judges are first appointed to the bench for a specific term, and thereafter run unopposed for re-election by majority vote.

History shows few judges are ever removed in retention elections, undoubtedly due to a lack of available information about any given judge's record. That translates into judicial candidates' disdain for voters and fewer responses to questionnaires, as Hurley experienced this year. Over time, however, he expects that to change as public interest in the voter guides grows. As many voters told him, “judges who refuse to answer the questionnaire should not be retained—much like a job applicant who's asking for a $150,000-a-year job, guaranteed for six years, but refuses to answer interview questions, would not be hired.”

Kentucky

The Family Foundation of Kentucky issued its first judicial voter guide since the successful litigation in 2004 that freed judicial candidates to talk about their views. According to Sarah Foster of the Family Foundation, only 20 percent of candidates responded to the questionnaires, but voters were hungry for any information they could get.

“We received positive feedback from citizens because many are simply ‘lost' when it comes to judicial races,” Foster said. “The state's Fairness Alliance even directed their constituents to our survey Web site because they noted that it had a higher response rate than most other surveys.”

A more encouraging sign for future voter guides in Kentucky was that six of eight state Supreme Court candidates set the example for the entire state judiciary by responding to the questionnaire.

Texas

Texas holds contested judicial elections, and has long been open to allowing judges to answer questionnaires. These factors have resulted in another successful voter guide effort this year from the Free Market Foundation (FMF), according to its president, Kelly Shackelford.

“We reached over six million Texans with our guides this year, a record for us,” he told Citizen.

The reach of FMF's voter guide is not lost on judicial candidates either. For example, every candidate for the Texas Supreme Court responded to the questionnaire.

“One judge called us immediately after getting his questionnaire and said he was overnighting his answers immediately,” Shackelford said. “When we told him he had a little time and that wasn't necessary, he said ‘Oh no, you don't understand. Not answering your questionnaire was the biggest mistake I made in the last election. I will never do that again.' ” The Texas example has become a model for other FPCs to follow, encouraged by the positive results Shackelford's group has achieved over time.

Florida

Florida Family Policy Council (FFPC), headed up by attorney John Stemberger, launched its first-ever judicial questionnaire and voter guide based in part on the Texas example, but expanded to cover Florida-specific issues. FFPC surveyed and reported on judges in both the primary and the general election.

Stemberger's group met with resistance from candidates, fearing the state's judicial ethics rules.

“Of those candidates that did respond, the vast majority, over 90 percent, checked the box indicating that they would have responded but for the fear of violating the state's judicial ethics rules,” Stemberger said.

That motivated Stemberger to bring a lawsuit, with attorney Bopp's assistance, challenging the Florida gag order provisions of its ethics rules. That federal lawsuit is pending. Nevertheless, the Florida voter guide was a success on several levels.

“Our best estimate is that just under one million people had access to the guide,” Stemberger told Citizen . The guide also generated enormous publicity. “This project created quite a stir in legal and judicial communities and has landed me and the FFPC on the front page of many major statewide legal newspapers. The national ABA Journal also featured Jim Bopp as their recent cover story and discussed the Florida (legal) action at length.”

Arizona

Only six of 80 judges responded to the questionnaire sent to them by The Center for Arizona Policy (CAP), but CAP spokesperson Peter Gentala considers it a successful first step.

“There is a lot of public frustration over how little is known about the judges voters are being asked to vote on,” Gentala told Citizen . “We see our survey as a chance to open up the process and allow the voters to gain a better understanding of their judges. Our Web site information on the judicial candidates had more ‘hits' than our other election information.”

North Carolina

North Carolina 's contested judicial elections resulted in a hugely successful voter guide effort, according to John Rustin of the North Carolina Family Policy Council. All of the Supreme Court and Court of Appeals candidates responded to the judicial questionnaire except one, and with 300,000 hard copies of the voter guide distributed, and another 90,000 downloads from its Web site, voter interest was clear. “After our general voter guide, the next 12 most frequently downloaded documents from our Web site were judicial election related,” Rustin e-mailed Citizen .