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Only one candidate for five contested seats on the Texas Supreme Court has taken advantage of the U.S. Supreme Court’s license to talk. And he appears to have made it pay off. Steven Wayne Smith, an Austin, Texas, solo practitioner with virtually no money, talks about issues before the court every chance he can, before coffees, candidate events and fairs. He says he would have joined dissenters in one case and required parental notification before abortions. He criticizes the majority’s public school financing opinion and is flatly against affirmative action. In the GOP primary in March, Smith felled the incumbent, who had been supported by the president and had a $713,048 war chest. In the general election, he faces a Democrat who has raised $604,564 to his $18,440 and who has the business and tort reform endorsements that usually go to Republicans. “People will be watching Smith out of the corner of their eye,” says Anthony Champagne, a government and politics professor at the University of Texas at Dallas who monitors judicial elections. “He’s done something new, and if he makes a credible showing, then you’ll see a lot other candidates doing the same thing next time around.” POLITICAL SHIFT It’s possible, however, that what he has to say will have less impact than the weather on Nov. 5. Political pundits in Texas say this election may mark a historic shift back to the Democrats for the all-Republican bench depending on whether minority voters turn out. Traditionally, Texans are straight-ticket voters who rarely even know the names of judicial candidates. They have relied on party affiliation, which has led to judges being swept in and out of office depending on who heads the ticket. Since the late 1980s, Republicans have dominated the state’s trial and appellate benches, as they have the state government. This year, demographic studies show a shift in population so that a candidate can win by not alienating Anglo voters while polling well in black and Latino communities. Democrats fielded a Hispanic and black ticket to challenge the Anglo governor and lieutenant governor. “If the top of the ticket can pull out the minority votes without losing too many Anglo voters, then you’ll see a lot of new Democratic judges,” Champagne says. “If not, it’ll be another GOP sweep.” While the eyes of Texas will be on urban voter turnout, Smith has been the only Texas appellate court candidate to exploit the U.S. Supreme Court’s license to speak. In June, a 5-4 Supreme Court removed restrictions that had forbidden judges from taking stands on public issues. The Texas Supreme Court then jumped in with new rules aimed at stopping just that kind of commentary by judicial candidates. Smith successfully challenged them in federal court. At that point, at the urging of Chief Justice Thomas R. Phillips, who has refused to take campaign contributions to protest the lack of dignity in judicial electioneering, most candidates signed pledges not to address public issues. Smith pointedly refused. Champagne says judicial campaigns have made little impact on the voters, who have focused on tightly competitive races for governor, lieutenant governor, the U.S. Senate and attorney general. There has been little television advertising for any judicial race, he says. “When you’re talking about low visibility campaigns, like the judges’, they just get drowned out by the big campaigns,” Champagne says.

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