When Harris County District Judge Steve Kirkland threw his hat into the ring as the Democratic candidate for place two on the Texas Supreme Court back in October, it was common knowledge he didn’t exactly have a huge chance of actually winning a seat on the highest civil court in the state.
Aside from the obvious reason—a Democrat hasn't been elected to statewide office in Texas since 1994—Kirkland was going up against Republican incumbent, Justice Don Willett, a conservative jurist with a Libertarian bent who has garnered praise and respect from both sides of the aisle during his time on the bench.
On top of that, Willett is the "Twitter judge." More than 100,000 people follow his charming feed on everything from his children, to holidays, to, of course, politics. (Willett made headlines across the country when he was shortlisted for the U.S. Supreme Court, and everyone noticed how he had routinely made fun of Trump on social media before Trump became president.) Impossible to beat, in other words.
By contrast, Kirkland is a well-respected judge with deep roots in Houston's progressive politics, but he’s best known outside of his work for being one of the first openly gay judges elected to Harris County District Court, and now the first to run for the Texas Supreme Court, as the Houston Press noted last month. Kirkland has known the odds are against him from the start.
But now Kirkland is no longer running against Willett.
See, President Donald Trump nominated Willett to a seat on the U.S. Fifth Circuit Court of Appeals earlier this fall and last week the Senate confirmed Willett’s nomination. Willett's replacement, Jimmy Blacklock, is a solid Texas Republican, but he has no public image to speak of, and he doesn't even have a Twitter account.)
In the wake of the recent GOP upset in Alabama’s U.S. Senate race, there has also been a lot of hypothesizing that the Democratic victory in deep red Alabama is a sign of a sea change, the possible harbinger of a Democratic surge in the 2018 midterms.
There are already a few high-profile Democrats running for statewide election next November, including U.S. Rep. Beto O’Rourke, the former El Paso punk rocker taking on Sen. Ted Cruz, and Lupe Valdez, who recently resigned as Dallas County Sheriff to run for governor. It’s not impossible enthusiasm for these candidates, paired with some general dissatisfaction with Trump, could lead to O’Rourke and Valdez winning or at least making good showings in the polls, Brandon Rottinghaus, a political science professor at the University of Houston says. It's also not unlikely that these things could fail to register at all for Kirkland and other Democratic candidates lower on the ballot.
Why? Well, there are a few reasons. For starters, Rottinghaus points out the recent surprise win of Democrat Doug Jones against Republican Roy Moore in Alabama probably had more to it than simple frustration with how the Trump administration has been doing in Washington D.C. “Alabama was awash with incumbents who were, well, filthy,” he notes. “There were so many scandals and stories about so many of the elected officials. Sure, Democrats were definitely agitated, but what they were agitated about was the sheer amount of scandal, something that was unique to Alabama. It wasn’t necessarily about Trump.”
And even if there is a blue wave that rushes Texas Dems into office next year—Texas could have its own special circumstances, after all—that still may not help Kirkland, or any of the other, less flashy Democrats on the ballot.
Running in a midterm election is about having a campaign that gets a lot of media attention and having a lot of money backing your campaign up, Rottinghaus says. Kirkland’s race is actually less flashy and attention-grabbing with Willett out of the picture, and it’s hard to see how he’ll compete against Blacklock, handselected by Gov. Greg Abbott to replace Willett, on fundraising. It’s the same problem other Texas Democrat candidates are facing.
With the midterms it will be a challenge just getting enough people to show up at the polls to make a difference, Rottinghaus says. “The straight-ticket voters tend to be your die-hard Republicans and Democrats. Republicans show up for these elections, but the die-hard Dems aren’t the ones who typically make the determining votes for these midterms.”
The best way to get an upset in a judicial race is for a lot of voters to vote straight-ticket, but that’s something that doesn’t usually happen in non-presidential years. Voters may turn out to cast their ballots for O’Rourke and Valdez, but that interest won’t necessarily extend down to the rest of the ticket. And that’s a problem, because studies have found that voters, particularly voters in larger counties, don’t tend to vote straight ticket for either party. When they don’t vote straight ticket, they also tend to lose interest in actually completing their ballots, often opting not to vote at all for races that are listed lower on the ballot sheet. Seriously. People go all the way to the polls, and then don’t finish the ballots routinely, according to Rottinghaus.
“It’s clear the Democrats are activated, and may be more active than they normally would be during a midterm election year,” Rottinghaus says. “But I still don’t think it’s going to be enough to overcome the structural problems that will keep the Dems from having that blue surge everyone is talking about.”
So, yeah, Kirkland and the rest of Democrats could possibly-maybe pull off some electoral upsets next year, but anyone who has a yen to bet the farm on a sweeping Texas victory next year may want to keep it down to just a sawbuck.