Don Foster will appear on the November ballot as the Democratic candidate for Mobile County district attorney. If it were up to him, there would be no party label beside his name at all — and none beside any judge’s, either.
A candidate arguing against his own ballot line
Foster, a former U.S. Attorney for the Southern District of Alabama appointed during the administration of President Bill Clinton, is not a reluctant Democrat. He qualified for the race under the party’s banner and is running with the party’s support.
But on balance, he says, the legal system would be better served — and public confidence in it more easily maintained — if its most visible figures, prosecutors and judges, did not hold their offices as political partisans of either party.
It is an argument with a long pedigree in Alabama, and one that tends to surface loudest in years when judicial campaigns turn expensive and nasty. Alabama elects its judges in partisan contests, from district court through the state Supreme Court, and it elects its district attorneys the same way. Candidates for the bench raise money from lawyers who appear before them and from the interests those lawyers represent, and they run under a party symbol that tells voters, in effect, how they are expected to rule.
The practical case
The office Foster seeks makes the point neatly. A district attorney decides which cases to charge, which to plead and which to take to a jury. Those choices land on individual defendants and individual victims, and the public is entitled to believe they were made on the evidence rather than on the politics.
In a partisan system, however, every high-profile prosecution invites the suspicion that party advantage played a part — a suspicion that has attached itself to more than one investigation in Mobile County over the years, fairly or not. Removing the party label would not eliminate politics from prosecution, but it would remove one obvious source of doubt.
The race ahead
Foster, 63, will face the winner of the June 1 Republican primary, in which assistant Mobile County District Attorney Ashley Rich and Mark Erwin, a former Mobile County GOP chairman and Saraland municipal judge, are competing for the nomination. The seat is open because incumbent District Attorney John Tyson Jr., a Democrat, chose not to seek re-election after holding the office since 1994.
Whether nonpartisan elections would help Foster politically is a separate question from whether he believes in them. Mobile County has trended Republican in countywide races, and Tyson has been the exception rather than the rule — the only Democrat to hold a non-judicial, countywide elective office in recent memory. Three local circuit judges still hold their seats as Democrats.
Changing the system would take an act of the Legislature, not a promise from a candidate. Bills to make judicial elections nonpartisan have been introduced in Montgomery before and have gone nowhere. Foster’s position is therefore a statement of principle rather than a plank he could deliver from the district attorney’s office.
It does, however, tell voters something about how he intends to campaign: as a prosecutor first and a Democrat second, in a county where the second half of that formulation is the harder sell.