Partisan 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 partisan election is one where candidates are listed on the ballot with indication of their political party.[1]

Though the basic premise of partisan elections is the same from state to state, there is some variation in how the elections are conducted.

Some states, like Texas and Alabama, hold partisan primaries in which Republican and Democratic candidates compete to represent their party in the general election. Louisiana also holds primaries, but each candidate competes for him or herself even though party affiliation is listed on the ballot.[2]

Alternatively, party representation may be determined by party nominating conventions or by nominating petition. In New York's controversial supreme court elections, voters elect party convention delegates who choose the general election candidates.[2]

States using this method

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

Supreme courts and intermediate appellate courts

Seven states elect their supreme court justices in partisan elections. Altogether, 58 state high court justices (18 in Texas alone) are elected using this method, totaling about 17% of all 338 state supreme court justices across the country.[3]

As designated, four of these states use partisan elections for their justices' initial and subsequent terms. The other three states use partisan elections for initial terms but use yes-no retention elections for subsequent terms.[3]

Three 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.
  • North Carolina: Supreme court elections are nonpartisan, but party affiliations are made obvious throughout the campaign process.
  • 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.[3]

Trial courts

By state, many more trial court judges participate in partisan elections than do appellate court judges. While only nine states hold partisan elections for appellate judges, twenty states use partisan elections to select their trial court judges.[3]

States with partisan elections for all trial courts

Of those twenty states, eight states select judges through partisan elections at all trial court levels:

Note: All judges in Ohio participate in partisan primaries and a nonpartisan general election.[3]

States with partisan probate court elections

Interestingly, in these five states, the only judges that run for election are probate court judges:

States with varied methods of selection for trial court judges

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

  • Arizona: In Arizona, only justice court judges are selected in partisan elections. Most other state judges are chosen through the assisted appointment method.
  • Indiana: In Indiana, all trial court judges are selected through partisan elections except for tax court judges, some circuit court judges and some superior court judges. For more information on Indiana, see Judicial selection in Indiana.
  • Kansas: Kansas has only one level of trial court, the district court. The method of selection is decided by voters of the judicial district; some judges are selected using the assisted appointment method, while others are chosen in partisan elections. For more on Kansas, see Judicial selection in Kansas.
  • Maryland: Judges of the orphans' court participate in partisan elections and circuit judges participate in partisan primaries, while most other judges are selected by assisted appointment.[5]
  • Missouri: All judges of the circuit courts compete in partisan elections except those located in Kansas City, Springfield and St. Louis, which are chosen by assisted appointment.
  • New York: All trial court judges participate in partisan elections except those serving on the family courts.
  • Ohio: Judges participate in partisan primaries with nonpartisan general elections.[4]

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.[6]

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.[7][8]

—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.[9] 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.[7]

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.[7]

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.[7]

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.[7]

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.[7][8]

—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.[7]

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.[7][3]

Retention elections have not escaped criticism, however, as money and mean-spiritedness can still play a role.[7] The debate continues between supporters of partisan, nonpartisan and retention elections; meanwhile, the practice of selecting judges through legislative elections has been largely discontinued.[3]

Support

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.[6]

[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.[6][8]

—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.[6][10]

Could this have happened in Missouri Plan states? Or in states with nonpartisan elections? Probably not as quickly.… [I]t is a significant thing for voters to assert themselves as dramatically as they did in these two states. It strongly supports the view that voters are not incompetent to vote on judicial races, and lends aid and comfort to those working to effect legal reform.[6][8]

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

Another argument put forth by proponents of this selection method is that affiliating judicial candidates with a political party efficiently communicates the candidate's values and ideologies to voters. Indeed, in their book The Politics of State Courts, political science professors Harry H. Stumpf and John H. Culver assert that, "In partisan [judicial] races, the political party label may give most voters all the information they seek."[6][11]

Furthermore, some 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 DeBow, one over which voters have little control.[6]

Criticism

Critics of partisan judicial elections argue that the growing amount of fundraising in election campaigns gives special interest groups a foothold to manipulate the judiciary to their liking. Judicial elections have become much more expensive in the last decade—partisan elections more so, perhaps because state parties serve as "ready-built infrastructures for 'bundling' donations," according to Billy Corriher of the Center for American Progress.[12] Those skeptical of the process also claim that it creates a highly polarized judiciary made up of judges who are pressured to please their campaign supporters.[13]

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.[14][8]

—Ohio Supreme Court Senior Associate Justice Paul Pfeifer

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.[13]

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. …

When voters think of judges’ political affiliation, they often think of cases involving controversial social issues, such as abortion or gay marriage, that garner a lot of media attention but constitute merely a fraction of a court’s rulings. But in the states that have seen the most judicial campaign cash, the campaign donors are not concerned with social issues. Instead, liberal judges are supported by trial lawyers who want to see judges protecting individuals’ right to sue wrongdoers; conservative judges are strongly backed by corporate interest groups that want judges who will uphold “tort reform” laws that limit lawsuits.[13][8]

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

Shepherd study

A 2013 study by the American Constitution Society titled "Justice At Risk: An empiracle analysis of campaign contributions and judicial decision" examined the effects of campaign contributions on judicial behavior.[14]

Independent researchers analyzed over 2,345 business-related state supreme court published opinions from 2010 to 2012, merging the dataset with over 175,000 campaign contribution records that occurred over that period. Information was also collected on the characteristics of individual justices, including ideology.[14]

The findings were reported as follows:

  • A significant relationship exists between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.
  • The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.
  • A justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.
  • The empirical relationship between business contributions and justices’ voting for business interests exists only in partisan and nonpartisan systems; there is no statistically significant relationship between money and voting in retention election systems.
  • There is a stronger relationship between business contributions and justices’ voting among justices affiliated with the Democratic Party than among justices affiliated with the Republican Party.[14][8]

—Associate Professor Joanna Shepherd of Emory University

See also

External links

References

  1. Jackson County, Missouri, "What is the difference between a partisan election and a nonpartisan election?" accessed December 29, 2014
  2. 2.0 2.1 American Judicature Society, "Methods of Judicial Selection," accessed December 29, 2014
  3. 3.0 3.1 3.2 3.3 3.4 3.5 3.6 American Judicature Society, "Judicial Selection in the States: Appellate and General Jurisdiction Courts," 2013
  4. 4.0 4.1 Judicial selection in the states
  5. Maryland State Board of Elections, "Judicial Elections," accessed January 19, 2015
  6. 6.0 6.1 6.2 6.3 6.4 6.5 6.6 The Federalist Society, "The Case for Partisan Judicial Elections," January 1, 2003
  7. 7.0 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 NYU Press, "The Study of Judicial Elections," accessed December 27, 2014
  8. 8.0 8.1 8.2 8.3 8.4 8.5 8.6 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  9. American Judicature Society, "History of Reform Efforts," archived October 2, 2014
  10. Sedgwick Law, "Tort Reform," July 2003
  11. Amazon, "The Politics of State Courts 1st Edition by Stumpf, Harry P.; Culver, John H. published by Longman Paperback," accessed December 30, 2014
  12. Michigan Campaign Finance Network, "Michigan’s Spectacular Failure of Campaign Finance Disclosure," June 2011
  13. 13.0 13.1 13.2 Center for American Progress, "Partisan Judicial Elections and the Distorting Influence of Campaign Cash," October 25, 2012
  14. 14.0 14.1 14.2 14.3 American Constitution Society, "Justice At Risk: An empirical analysis of campaign contributions and judicial decision - Key Findings," June 2013, accessed December 9, 2013