Nonpartisan election of judges

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Methods of judicial selection
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Assisted appointment
Gubernatorial appointment
Legislative election
Partisan elections
Nonpartisan elections
Retention election

A nonpartisan election is one where the candidates are listed on the ballot with no designation of party affiliation.

There are minor differences in how these elections are conducted from state to state, mostly regarding what happens in the months before election day. Varying codes of conduct govern the campaign process of judicial candidates, limiting how much or little they can reveal about party affiliation and their stance on controversial issues. In recent years, federal court rulings have loosened these restrictions in some states; in Ohio, for instance, it was ruled in 2010 that candidates have the right to announce their party affiliation, and a similar issue arose in Kentucky in 2014.[1] In Michigan, political parties play a direct role in nominating candidates, but no party affiliation is listed on the ballot itself.

States using this method

Though a shrinking number of states use nonpartisan elections to select judges of all their courts, many states continue to use nonpartisan elections at some level of their judiciary.

Supreme courts and intermediate appellate courts

Thirteen states choose their state supreme court justices in entirely nonpartisan elections. Altogether, 105 state high court justices are elected using this method, totaling about 31% of all 338 state supreme court justices across the country.[2]

*Note: North Carolina's supreme court elections are nonpartisan, but party affiliation is made obvious throughout the campaign process.

Two additional states have an electoral process that includes partisan and nonpartisan elements:

  • Michigan: Candidates for the supreme court are nominated at party conventions, but no partisan affiliation is listed by their name as it appears on the ballot. However, judges of the court of appeals and circuit courts are selected in nonpartisan elections.
  • Ohio: Candidates for the supreme court and courts of appeal are chosen in partisan primaries, but no party affiliation is listed by candidates' names on the general election ballot.[2]

Trial courts

By state, more trial court judges participate in nonpartisan elections than do appellate court judges. While only fifteen states hold nonpartisan elections for appellate judges, twenty-two states use nonpartisan elections to select their trial court judges.[2]

States with nonpartisan elections for all trial courts

Of these twenty-two states, eighteen states select judges through nonpartisan elections at all trial court levels:

*Note: Candidates in Ohio and Maryland compete in partisan primaries.

States with varied methods of selection for trial court judges

The five states below have varied methods of judicial selection but incorporate nonpartisan elections at some level:

  • Arizona: In Arizona, some superior court judges are chosen in nonpartisan elections, though in counties with populations over 250,000 they are chosen by the assisted appointment method. Since Proposition 108 was adopted in 1974, which originally set the population limit at 150,000, only Maricopa and Pima counties have been affected. With the 2010 census, however, Pinal County became the third county in the state to be eligible, and later adopt, this method.
  • Georgia: Judges of the probate courts compete in partisan elections, while other trial elections are nonpartisan.
  • Indiana: Some circuit court judges participate in nonpartisan elections, while most other judges compete in partisan elections.
  • Maryland and Ohio: Judges face partisan primaries and nonpartisan general elections.[3]

History

The United States has always struggled to agree on the best way to create a fair and impartial judicial branch. Choosing an optimal judicial selection method is uniquely challenging, because the judicial branch is expected to impartially apply the law without regard for politics or other considerations—being in this way independent—but also be responsible for the quality of their decision-making—being in this way accountable.[4]

Founders like Hamilton strongly favored judicial independence because of the conflict they saw in England between judges and the king. They also believed judicial independence was needed based on the colonial experience where governors often appointed friends to the bench no matter the person’s qualifications.[5][6]

—Associate Professor Matthew J. Streb of Northern Illinois University

Keeping independence and accountability in mind, these founders established a system whereby the President would appoint federal judges with U.S. Senate consent. Before the mid-1800s, nearly all states admitted to the Union selected their judges by this method of gubernatorial appointment with legislative confirmation as well, though some opted to select judges by legislative vote alone.[7] Then in 1832, Mississippi became the first state to implement judicial elections. New York followed suit in 1846, and a rapid shift occurred as state after state joined them. By the time the Civil War began in 1861, 24 of the 34 states had an elected judiciary, and every state that entered since provided for the election of some—if not all—of its judges.[5]

Scholars attribute the move toward judicial elections to a variety of factors, including

  • concern over an independent judiciary, especially after Marbury v. Madison established the judiciary's power as equal to that of the executive and legislative branches,
  • imitation by the states,
  • belief that judges at a local level should be accountable and responsive to their communities, and
  • the growing popularity of Jacksonian ideals, which touted the importance of the "common man's" voice.[5]

Initially, all judicial elections were partisan. But as time went on, public trust in elected judiciaries wavered, and citizens who viewed the courts as overrun by machine politics began looking for alternative methods. Groups such as the Progressives, the American Bar Association and the American Judicature Society spearheaded a push to restore "the traditional respect for the bench," which they believed had been lost.[5]

One popular reform method was the nonpartisan election of judges, first implemented by Illinois' Cook County in 1873. By not including party affiliation on the ballot, supporters argued, divisive partisan interests would find no footing in state and local selection processes.[5]

Since judges are supposed to be “above politics,” this reform was particularly popular regarding judicial selection. Nonpartisan judicial elections were perceived as a way to clean up corruption and cronyism in the judicial selection process while still keeping judges accountable to the people.[5][6]

—Associate Professor Matthew J. Streb of Northern Illinois University

By 1927, twelve states selected judges in nonpartisan elections. Many still took issue with the process, however, pointing out that as long as judges had to campaign for office, politics would play a role. Others questioned whether citizens would be able to cast informed ballots in nonpartisan judicial elections, the assumption being that party affiliation communicates a candidate's values in an easy shorthand. For these reasons, three states who had experimented with nonpartisan elections switched back to partisan ones by 1927.[5]

Out of these concerns arose a third kind of election, the retention election, purported by the American Judicature Society to encapsulate the positive aspects of each selection system. In another attempt to balance independence and accountability, retention elections were meant to work within the commission-selection, political appointment method to give judges relief from campaigning against an opponent while also giving voters the power to remove those judges from office if necessary. In 1940, Missouri became the first state to adopt the commission-selection, political appointment method as we know it today, and since then over thirty states have followed suit, using some form of retention elections at some level of their judiciary.[5][2]

Retention elections have not escaped criticism, however, as money and mean-spiritedness can still play a role.[5] The debate continues between supporters of partisan, nonpartisan and retention elections; meanwhile, the practice of selecting judges through legislative elections has been largely discontinued.[2]

Support

Compared to non-elective methods

Proponents of judicial elections argue that the method is the most democratic, allowing the people to have a direct voice in selecting judges. They believe voters are capable of selecting a judiciary that reflects their values and that they are entitled to that choice.[4]

[Y]ou cannot take the politics out of decisions about who is going to hold what office, but you can take the people out of the politics. This democracy business can be a little messy at times, certainly inefficient and occasionally some bad mistakes are made, but you can trust [voters] to get it right most of the time.[4][6]

—Professor Michael E. DeBow of the Samford University School of Law

Along similar lines, those in favor of elections say that the prospect of being voted out of office holds judges accountable to voters. Samford University law professor Michael E. DeBow points to examples from the late 1990s when judiciaries in Texas and Alabama appeared to be heavily inclined towards trial lawyers. When voters caught wind of this, they began what DeBow calls a "revolt," replacing their judges and moving towards tort reform laws.[4][8]

Compared to partisan elections

Supporters of nonpartisan elections will readily admit, like DeBow commented above, that democracy can be "a little messy at times." Between partisan and nonpartisan elections, however, they see the latter as preferable, in part because nonpartisan campaigns do not attract as much funding as partisan ones. In her 2013 study "Justice At Risk: An empirical analysis of campaign contributions and judicial decision," law professor Joanna Shepherd noted that "[b]etween 2000-2009, campaign fundraising was three times greater in states with partisan elections; candidates in these races raised $153.8 million across nine states, compared to $50.9 million raised in the thirteen states with nonpartisan elections."[9] A lower fundraising tally is seen as preferable because the business groups, lawyers and lobbyists that sponsor campaigns may sometimes be seeking to profit from "their" candidate winning.

State parties serve as "ready-built infrastructures for 'bundling' donations," according to Billy Corriher of the Center for American Progress, making it easier to quietly contribute large amounts of money to judicial campaigns.[10]

Addressing the argument that party affiliation gives voters useful information about a judge's values, Corriher believes voters actually understand very little about how partisanship plays into everyday decisions on the bench.[10]

If voters understood how a Republican judge differs from a Democratic one in the run-of-the-mill cases that occupy most of the courts’ time, then partisan identification might prove more useful. Simply labeling a judge as a Republican or Democrat probably tells most voters little about how the judges will decide cases.[6]

—Billy Corriher, Director of Research for Legal Progress at the Center for American Progress

Criticism

Compared to non-elective methods

Critics of elective methods might view nonpartisan elections as more desirable than partisan elections but less desirable than the assisted appointment method. Where there is campaigning, they argue, there are special interest groups interested in buying a vote.

I never felt so much like a hooker down by the bus station... as I did in a judicial race. Everyone interested in contributing has very specific interests. They mean to be buying a vote.[9][6]

—Ohio Supreme Court Senior Associate Justice Paul Pfeifer

Compared to partisan elections

Opponents of nonpartisan elections argue that in absence of campaigning by party affiliation, issue-based campaigning becomes the norm. In these campaigns, a judge's isolated rulings on specific issues—often abortion, gay marriage, death penalty and tax policy—are publicized to the exclusion of less hot-button issues.

In partisan systems, voters know a candidate’s partisan affiliation, which they can presume will correlate at some level with a judge’s philosophy and ideological leanings. Nonpartisan elections, by comparison, provide no such cue. As a consequence, in nonpartisan systems interest groups and others can more easily shape voters’ perceptions of a judge by publicizing isolated rulings.[11][6]

—Professor Brandice Canes-Wrone of Princeton University and Assistant Professor Tom S. Clark of Emory University

Some opponents also argue that partisanship is unavoidable. Even in the assisted appointment method of judicial selection there arises something of a "subterranean process of bar and bench politics," writes law professor Michael E. DeBow, one over which voters have little control.[4]

Furthermore, because nonpartisan elections are governed by codes of conduct limiting the information a candidate can reveal about him or herself during a campaign, critics argue that they violate candidates' right to free speech. In Ohio, a federal appeals court ruled in 2010 that candidates have the right to announce their party affiliation, writing, "Elections are elections, and the same First Amendment applies to all of them."[1] The decision gave momentum to the movement to open nonpartisan elections to partisan dialogue, culminating in a similar federal appeals ruling in Montana in 2012 that enabled political parties to support and oppose judicial candidates there.[12]

"I am not convinced that there is much of anything we can keep anyone from saying," commented chairman Steve Wolnitzek of Kentucky's judicial conduct commission.[1]

See also

External links

References