Lansing — If history holds true, the Michigan Supreme Court race will be ignored by many voters Nov. 6, but the candidates are scrambling for attention, including recruiting the stars of the former hit TV show "The West Wing."
Roughly 28 percent of 3.26 million voters in the 2010 general election skipped the nonpartisan portion of the ballot — which lists Supreme Court justices even though they're nominated by the Republican and Democratic parties — as did about 26 percent of 5.04 million who voted in the 2008 presidential election, according to figures from the Secretary of State's office. Yet millions are being spent to influence voters this year.
In recent years, the justices have rendered decisions on affirmative action, gay marriage, stem cell research and other politically charged issues. For many legal observers, it's critical whether conservatives or liberals have the majority of the court's seven seats.
Two Republican-backed justices, Stephen Markman and Brian Zahra, are up for re-election. Markman and GOP-backed Oakland Circuit Judge Colleen O'Brien are running for eight-year terms. (Democrat-backed Justice Marilyn Kelly was forced by law to retire). Zahra is running for a partial term that ends in 2014. He'll be opposed by 49th District Court Judge Shelia Johnson of Southfield, who was nominated by the Democratic Party. The Democrats also backed Wayne Circuit Judge Connie Marie Kelley and Bridget McCormack, dean of clinical studies at University of Michigan Law School, who are running for eight-year terms.
With Republicans in control of the House, Senate and governor's office, Democrats aim to win back the court majority they lost in November 2010.
"The Democrats are pretty much cut out of state government right now, and this would give them a piece of the action," said Bill Ballenger, editor of Inside Michigan Politics newsletter.
"If there's litigation on these ballot proposals, Democrats would dearly love to have a democratically controlled Supreme Court."
There are six statewide proposals on the Nov. 6 ballot.
The candidates raised roughly $2.5 million as of their last filing date in late September. But money is also being spent by the political parties and special interest groups on the races.
"It's going to go well over $10 million," said Rich Robinson, executive director of the Michigan Campaign Finance Network.
Robinson said he's trying to track how much money is being spent on media in the race, but much of it won't be reported because it's not subject to disclosure rules.
"It's degenerated to kneecapping the other side," Robinson said.
Some who vote a straight ticket might not know they've missed what can be a major portion of the ballot, experts said.
The importance of reading the whole ballot is the topic of two "West Wing" videos floated by McCormack. One is a campaign video in support of McCormack, while the other makes no mention of the candidate. The otherwise identical scripts ask voters to take time to check out the nonpartisan portions of their ballots.
"If they just casually vote the party line, then their interests will continue to go unrepresented," said actor Martin Sheen, reprising his role as U.S. President Josiah "Jed" Bartlet.
'West Wing' connection
McCormack's sister is her connection to "The West Wing." Mary McCormack played Deputy National Security Advisor Kate Harper on the show from 2004-06, and offered to round up her former cast mates to make the videos.
More than a million people have watched McCormack's YouTube videos, which were noticed by the Washington Post, slate.com and other national media.
"I ultimately believe that if more people participate we're likely to have a court that serves the people better," Bridget McCormack said.
Zahra said he believes differences on the court have more to do with philosophy than politics. He noted the court this year ruled against deductions from public employees' paychecks that were favored by Gov. Rick Snyder, and ordered the Board of State Canvassers to put proposals on the ballot after Republican canvassers refused to certify the petitions.
Of 68 cases Zahra ruled on since his January 2011 appointment by Snyder, 34 were decided by a 4-3 vote along party lines, he said. Decisions were agreed upon by liberal and conservative justices in the remainder of cases, he said.
A better system?
Kelley sees it differently. She would like to reform how judges are elected in Michigan.
"We should have justices elected on a nonpartisan basis and take the politics and the money out of judicial elections," she said. "People expect the courts, especially the Supreme Court, to be above the politics of the day."
O'Brien disagrees. "Even though there are flaws, there is a good vetting that goes on" through the election process, said O'Brien, who has been a judge in Oakland Circuit Court since 1998. "I don't think we can come up with a better system at this point."
Markman said differences on the court have to do with how justices perceive their role. In his opinion, it's up to the Legislature to make laws and it's the Supreme Court's job to make sure laws are followed as lawmakers intended.
"The debate is whether we are going to defer to the judgments of the elected representatives of the people, or if what's in the justices' own heart is what's important to the decisions," he said.
Johnson said her interest is in access to justice. She wants to coordinate computer systems used by Michigan's different court systems to speed up the judicial process, and make the judicial system easier for people to navigate.
"The Supreme Court has control over which court rules are used in the state, and those rules can be tweaked to be easily understood by people," she said. "It makes access and understanding of the system a little easier for people."
Target: Bridget Mary McCormack
GOP charge: She was ‘elated’ after former Gov. Jennifer Granholm freed convicted murderer Thomas Cress, who had raped and strangled a teenage girl, even after prosecutors called the decision ridiculous.
Her response: "Though innocent, Mr. Cress was wrongfully kept in prison based on a technicality. …Those who originally implicated Mr. Cress admitted that they had lied and received reward money in exchange for their testimony."
Target: Colleen O’Brien
Democratic charge: O’Brien sentenced a man who had raped an 11-year-old boy to just one year in jail and four years of probation.
Her response: "The defendant was mentally handicapped (and) … had been repeatedly abused. … Because of that, the prosecutor recommended, with the agreement of the victim’s parents, that the defendant be given one year in prison and four years probation."
Target: Connie Marie Kelley
GOP charge: She accepted an appointment to the Wayne County Drainage Board by scandal-ridden Wayne County Executive Bob Ficano.
Her response: "I was recommended to serve on the Wayne County Drain Commission by Republican state Rep. Kurt Heise, who was the chairman at the time and an appointee of Wayne County Executive Robert Ficano. I served as a volunteer."
Target: Stephen Markman
Democratic charge: He reversed the conviction of a politician caught with thousands of images of child porn.
His response: "All the Democratic justices joined me on this decision. … (The defendant) was punished severely, but he was not punished as severely as someone who films the child, who produces the pornography."
Target: Shelia Johnson
GOP charge: She allowed a 16-year-old, who was charged with murdering a pregnant woman, to remain in juvenile facilities rather than moving him to jail, even though the accused faced life in prison if convicted.
Her response: "Prosecutors requested to move the youth from the juvenile facility to an adult detention center. I followed the law and kept the youth detained in the Juvenile Detention Center."
Target: Brian Zahra
Democratic charge: He reversed the conviction of a man who admitted to sharing pornographic images of children.
His response: "The court affirmed the defendant’s conviction on possession of child pornography and using a computer to possess child pornography" but reversed the distribution charge since it was a work computer that contained the pornography and returning it to his boss is simply not the law of distribution."