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Ballotpedia Courts: State Partisanship/Retention Elections and Vacancy Appointments
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June 2020
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Retention Elections
Pure Partisanship scores are roughly 0.3 points lower for states that have retention elections. The average Pure Partisan scores for justices in states that use retention elections is 6.8, while the average for states that do not use retention elections is 7.1.
State supreme court justices facing retention elections experienced better chances of being re-elected than their incumbent counterparts in other systems of appointment. Since 2008, there have been 155 justices who faced retention elections. Incumbent justices won 152 (98%) of these elections. Since 2008, incumbent justices in non-retention elections have faced 196 elections. The incumbent justices won 176 (90%) of these elections. Incumbent justices experienced a 93% win rate across all selection methods.
Since 2008, Iowa is the only state that has seen retention elections where justices were not retained. Iowa supreme court justices Marsha K. Ternus, Michael J. Streit, and David L. Baker lost their retention elections in 2010. This was widely recognized as a reaction to their participation in a decision to remove the state ban on same-sex marriage in the 2009 decision of Varnum v. Brien. Ternus was appointed by Republican Governor Terry Branstad, while Baker and Streit were appointed by Democratic governors. They were replaced by Bruce Zager, Thomas Waterman, and Edward Mansfield, all three of whom were appointed by Republican governor Terry Branstad in 2011. Zager’s seat was filled in 2018 by Susan Christensen, who was appointed by Republican Governor Susan Reynolds. Waterman and Christensen registered Mild Republican Confidence Scores, while Mansfield registered an Indeterminate Confidence Score.
In at least two other states there have been unsuccessful attempts to unseat sitting justices with campaigns against their retention. In 2014, Justice Lloyd Karmeier faced opposition in his retention election bid for his seat on the Illinois Supreme Court. He was retained by 0.8 percent of the vote. Karmeier recorded a Mild Republican Confidence Score. Illinois has been a Democratic trifecta for 14 out of the last 18 years.
In 2014, Tennessee Senate Speaker Ron Ramsey (R) led the opposition to the retention of Chief Justice Gary R. Wade and Justices Cornelia Clark and Sharon Lee. All three justices were appointed by Democratic Governor Phil Bredesen. They were narrowly retained on August 7, 2014. Justices Clark and Lee both recorded Mild Democratic Confidence Scores. Tennessee has been a Republican trifecta for the last 10 years.
Retention elections are meant to hold justices accountable after their first years on the state supreme court. According to courts.missouri.gov, “The nonpartisan plan also gives the voters a chance to have a say in the retention of judges selected under the plan…. The purpose of this vote is to provide another accountability mechanism of the nonpartisan plan to ensure quality judges.”[1] But few justices are rejected through retention elections after serving on the state supreme court. For example, no incumbent justice has lost a retention election in Missouri history.[2]
Vacancy Appointments
We refer to the method of selection as “exception” when a justice is appointed to fill a vacancy by a method other than the state’s ordinary method of selection. We consider justices appointed to fill vacancies exceptions because they rise to the bench in a way different from the state’s ordinary method of selection to the court. In every state except Illinois, vacancies to the state supreme court afford the governor more power than usual over the selection of a justice. Most Assisted Appointment states use the existing judicial nominating commission to provide the governor with a list of nominees from which they may choose. All states, except Illinois, give the governor power to appoint a justice of his choice. Partisan vacancy appointments are important because they give the justice the advantage of incumbency when they run in retention elections.
The average Partisan Leaning Score of state supreme court justices in the United States is 1.7, and the average Partisan Leaning Score of exceptions is 1.5. Across all states, the average Pure Partisan Score of justices appointed to fill a vacancy on the court is 8.3, whereas the average Pure Partisan Score for all justices across the United States is 7.1. The percentage of state supreme court justices initially appointed to fill a vacancy on the court is 21.4%.
Below is a table comparing the leanings of vacancy appointments to justices appointed by the ordinary method of selection:
| Partisan Category | Number of Exceptions | Percentage of total Exceptions by Category | Total justices in Category | Percentage of Total number of Justices in Category |
| Strong Republican | 17 | 23.60% | 54 | 15.80% |
| Strong Democrat | 12 | 16.60% | 35 | 10.30% |
| Mild Republican | 21 | 29.30% | 124 | 36.70% |
| Mild Democrat | 15 | 20.80% | 78 | 22.90% |
| Indeterminate | 7 | 9.70% | 49 | 14.30% |
There are 17 justices with Strong Republican Confidence Scores who have been appointed to fill vacancies, 12 justices with Strong Democratic Confidence Scores, 21 justices with Mild Republican Confidence Scores, 15 justices with Mild Democratic Confidence Scores, and seven justices with Indeterminate Confidence Scores. When considering all justices regardless of appointment method, 54 have been appointed with Strong Republican Confidence Scores, 35 have been appointed with Strong Democratic Confidence Scores, 123 have been appointed with Mild Republican Confidence Scores, 79 have been appointed with Mild Democratic Confidence Scores, and 49 have been appointed with Indeterminate Confidence Scores.
To fill vacancies: 7.5% more justices with Strong Republican Confidence Scores were appointed than average, 6.3% more justices with Strong Democrats Confidence Scores were appointed, and 4.6% fewer justices were appointed with Indeterminate Confidence Scores than average.
About the authors
Samuel Postell is a staff writer on Ballotpedia's Marquee Team and a lecturer at the University of Dallas.
Luke Seeley is a staff writer on Ballotpedia's Marquee Team.
Heidi Jung developed the graphics.
Ballotpedia CEO Leslie Graves, Ballotpedia COO Gwen Beattie, Editor-in-Chief Geoff Pallay, and Ballotpedia Vice President of external relations Alison Prange reviewed the report and provided feedback as did editor Cory Eucalitto. Outside reviewers included Dr. G. Alan Tarr from Rutgers University, and Dr. Aman McLeod from the University of Idaho College of Law.
Footnotes
- ↑ courts.mo.gov. “Nonpartisan Court Plan.” accessed October 5, 2020, from https://www.courts.mo.gov/page.jsp?id=297
- ↑ Ballotpedia, “Retention election.” accessed October 5, 2020, from https://ballotpedia.org/Retention_election
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