Retention election

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Retention election

A retention election or judicial retention is a periodic process whereby voters are asked whether an incumbent judge should remain in office for another term. The judge, who does not face an opponent, is removed from the position if a percentage of voters (often 50%) indicate that he or she should not be retained.[1]

Retention votes are frequently thought of in connection with the commission-selection, political appointment method of judicial selection. However, some states that choose state supreme court justices in partisan or non-partisan elections for their initial term use retention elections for subsequent terms on the court.[2]

Typically, judges and justices in states with retention elections are retained with anywhere from 60-80% of the vote. However, retention elections are sometimes used as opportunities to remove from office judges who have made unpopular rulings.[3] For example, in Iowa's 2010 retention election, David Baker, Marsha Ternus and Michael Streit, three Iowa Supreme Court justices, were denied retention by slim margins because of the court's unpopular decision to legalize gay marriage.[4]

States using this method

States with retention elections for all level of courts

States with appellate court retention elections

States with retention elections following popular elections

In these states, once a judge has been elected to the court in a popular partisan election, he or she stands for retention in subsequent elections.

Historical turnover by state

Arizona

align=right The state has only failed to retain three judges since it began using the merit selection method in 1974. In 1978, Judge Gary Nelson of the court of appeals and Judge Fred Hyder of the Maricopa County Superior Court were voted off the bench. Not until 2014 did a third judge, Benjamin Norris of the Maricopa County Superior Court, receive less than the majority "yes" vote required to remain seated.[6]

California

align=right California adopted retention elections in 1934. Until 1986, not a single California Supreme Court justice had failed to be retained. In that year, however, three justices on the supreme court—Joseph Grodin, Cruz Reynoso and Chief Justice Rose Bird—were rejected by voters, receiving "no" votes of 65%, 57% and 66%, respectively.[7] In campaigns against the judges, they were portrayed as opposing the death penalty.[8]

Colorado

align=right In 2014, a campaign against Judge Ben McClelland of the Grand County Court began after McClelland failed to be recommended by the judicial performance commission. He was ousted, receiving only 46.9% of the vote.[9]

Illinois

align=right Since the state adopted retention elections in 1964, it has been the only state with slightly higher retention requirements—60% "yes" votes rather than the usual 50%. Perhaps for this reason, the state has more failed retentions than other states:[10]

  • 1974: 1 failed retention
  • 1976: 1 failed retention
  • 1978: 4 failed retentions
  • 1980: 3 failed retentions
  • 1982: 1 failed retention
  • 1986: 3 failed retentions
  • 1988: 1 failed retention
  • 1990: 10 failed retentions
  • 1992: 2 failed retentions
  • 1994: 2 failed retentions
  • 2004: 1 failed retention

The cause for the 1990 spike in failed retentions is still a bit unclear, but research analyst Albert Klumpp commented that,

One of the co-chairs of the 1990 retention judges’ campaign committee did, to his credit, correctly spot the increase in all-no voting, telling the Chicago Daily Law Bulletin that “the group of voters who voted straight ‘no’ was higher than ever before” (Rooney 1990a). He also singled out suburban voters for being most responsible for the shift. This would further support the notion of a relatively stronger response to the THRO campaign from conservative voters, given the higher numbers of conservative voters in the suburbs than in the city.[11]

—Research Analyst Albert Klumpp, McDermott Will & Emery LLP[12]

Oddly, the number of failed retentions dropped after 1994. Only one judge failed to be retained from 1994 to 2014, though in 2014 a campaign arose to remove Justice Lloyd Karmeier from his seat on the Illinois Supreme Court. He was narrowly retained, winning by a margin of only .8%.[13][14]

Iowa

align=right Since Iowa adopted a merit plan with retention elections in 1962, seven judges have not been retained.[15] Three of those judges—Marsha K. Ternus, Michael J. Streit and David Baker of the Iowa Supreme Court—were ousted in 2010 after the state ban on same-sex marriage was lifted.[8] The three justices had supported the removal of the ban in the 2009 ruling Varnum v. Brien, and they faced retention opposition from groups that opposed gay marriage.[16]

Missouri

align=right To date, no appellate judge in Missouri has ever lost a retention election.[17]

Nebraska

align=right David Lanphier became Nebraska's first supreme court justice to lose a retention election; he was unseated in 1996, after having been appointed in 1992.[7]

New Mexico

align=right In 2014, two district judges did not receive the required 57% of affirmative votes to be retained. Albert Mitchell of the 10th District Court and Sheri Raphaelson of the 1st District Court were 2 of 86 judges running for retention that year.

Tennessee

align=right In 1996, shortly after the state adopted judicial retention elections as its preferred method of re-election, Tennessee voters rejected the retention of then-Chief Justice Penny White.[7]

Later in 2014, three justices of the Tennessee Supreme Court faced opposition in their bid for retention. Senate Speaker Ron Ramsey led the charge to unseat Chief Justice Gary R. Wade and Justices Cornelia Clark and Sharon Lee, and the justices organized their own campaigns to counter the opposition. While all three justices were retained on August 7, 2014, they did so only by narrow margins.[18][19][20]

Wyoming

align=right Since Wyoming adopted merit selection of judges in 1972, five judges have been rejected by voters, including a supreme court justice whose 1992 bid for retention failed.[21]

Origins

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.[22]

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.[11]

—Associate Professor Matthew J. Streb of Northern Illinois University[23]

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.[24] 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.[23]

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.[23]

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.[23]

One popular reform method was the non-partisan 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.[23]

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.[11]

—Associate Professor Matthew J. Streb of Northern Illinois University[23]

By 1927, twelve states selected judges in non-partisan 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.[23]

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.[23][5]

Retention elections have not escaped criticism, however, as money and mean-spiritedness can still play a role.[23] The debate continues between supporters of partisan, non-partisan and retention elections; meanwhile, the practice of selecting judges through legislative elections has been largely discontinued.[5]

Support

Since retention elections are most often used within the commission-selection, political appointment plan ("merit selection"), arguments for or against these two subjects are usually bundled together.

The retention system is said to protect judicial independence by insulating the judicial selection process from the influence of partisan politics. Unlike processes where judges must run for election and re-election against other candidates, merit selection eliminates the need for judges to fundraise, advertise and make campaign promises which could cause them to make rulings based on outside influences rather than the law.[25]

At the same time, the method allegedly protects judicial accountability because the general public is still given a voice in whether or not they should continue serving. Judicial evaluations like this one from Illinois are available to help voters gauge judges' integrity, impartiality, legal ability, temperament, court management, health and sensitivity. If a judge falls short on these metrics, or if he or she earns a reputation for heinous courtroom behavior, voters are able to remove him or her from office.[25]

Shepherd study

Merit selection's alleged ability to shrink the role of money in judicial election campaigns is touted as a major selling point. 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.[26]

Independent researchers analyzed over 2,345 business-related 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.[26]

Business group campaign contributions in U.S. state supreme court judicial elections, 2010-2012[26]
Justices subject to: Funding from business groups Total funding Average percentage from business groups
Appointment 0 0 0%
Retention election $6,411 $40,820 2.9%
Nonpartisan election $65,692 $251,526 16.9%
Partisan election $289,025 $841,360 25.1%

Some of 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.
  • 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.

[11]

—Associate Professor Joanna Shepherd of Emory University

Ben McClelland (Grand County Court, Colorado)

Even after he was voted off the bench in 2014, Judge Ben McClelland of Colorado's Grand County Court expressed fondness for the retention election system. When asked by Sky-Hi News why he did not mount a campaign to fight those trying to oust him, he said,

The premise for the judiciary is not to be political. It goes back to the grade school concept of the ‘three-legged stool.’ The judiciary system is to interpret the laws and settle disputes. In other states they have elections and campaigns for judges. A lot of times that results in judges taking campaign contributions and then deciding cases.

I believe every judge should be above campaigns. Judges should render decisions based on case law and the evidence in the case and not based on who the parties involved are. I chose not be involved in the process of a political campaign.[11]

—Former Judge Ben McClelland[9]

Criticism

Retention elections, especially when combined with the commission-selection, political appointment method, are criticized for not giving voters a more direct voice in choosing those who occupy their judiciary. Once judges are appointed to the bench (or elected, in the case of Illinois and Pennsylvania), critics say that they're essentially being given a life term, since voters are unlikely to do their homework on candidates.

[Cook County] residents voted to retain every single one of the 57 candidates on November [2012]’s circuit court ballot—including four judges deemed “not qualified” by most bar associations. This happens in nearly every judicial election around here: Since 1990, the retention rate has been 100 percent.

You already know part of the reason. Voting in judicial retention elections is like cramming for a test in a class you always skip: cribbing notes from someone who was there (in this case, the voting recommendations of the bar associations—all 11 of them) and trying to remember the answers when it comes time to pencil in all those arrows. …

But the bigger problem is that in Illinois, unlike in the majority of other states where judges get reelected, you don’t get to choose between the current judges—who have mostly been picked by the powerful ward and township committeemen in Cook County—and new candidates for the job. When jurists’ six-year terms are up, you simply get asked whether you want to retain them or fire them. Because most people don’t bother to vote in retention elections—or they just mark “yes” on a straight party line—even bad judges get electoral mulligans.[11]

—Whet Moser, Associate editor of Chicago Magazine[12]

Like critics of non-partisan elections, those opposed to retention elections say that lack of party affiliation can confuse voters, causing retention campaigns to instead focus on hot-button issues that may not be relevant to a judge's everyday decisions.

[R]etention elections will not insulate judges from the pressure to cater to public opinion on hot-button issues. To the contrary, the lack of a party label makes the judges susceptible to being characterized by one or two isolated decisions.[11]

—Professors Brandice Canes-Wrone (Princeton), Tom S. Clark (Emory) and Jee-Kwang Park (Princeton)[27]

Pascal Calogero (Louisiana Supreme Court)

At his final State of the Judiciary Address in April of 2008, retiring Louisiana Supreme Court Chief Justice Pascal Calogero cautioned the Louisiana Legislature that any move by state lawmakers to introduce merit selection or other forms of judicial appointment would be a detriment to the Louisiana judiciary. Calogero believed that various forms of merit selection are built upon the incorrect notion that an elected judiciary is susceptible to political meddling and therefore poised for corruption.

My experience has been that the electorate, for the most part, has made wise and deliberate choices of those who are elected to serve in the state judiciary...I am also concerned that replacing an elective system with a selection or appointive system only takes away the choice from the people and places it in the hands of a few...It does not in any way remove the politics from the process, as some have argued.[11]

Pascal Calogero, former Louisiana Supreme Court justice[28]

Report on judicial evaluation awareness

A 1998 study by Kevin M. Esterling and Kathleen M. Sampson entitled "Judicial Retention Evaluation Programs in Four States: A Report with Recommendations" found that in Alaska and Colorado, only 58% and 55% of voters, respectively, said they were aware of available judicial performance evaluations. According to exit polls reported in the same study, Arizona and Utah voters indicated even less awareness.[7][29]

See also

External links

References

  1. American Judges Association, "The Debate over the Selection and Retention of Judges," 2010
  2. American Judicature Society, "Methods of Judicial Selection," archived October 2, 2014
  3. Associated Press: "Removal of Iowa judges may inspire similar efforts," November 5, 2010
  4. CNN Politics, "Iowa voters oust justices who made same-sex marriage legal," November 3, 2010
  5. 5.0 5.1 5.2 5.3 5.4 American Judicature Society, "Judicial Selection in the States: Appellate and General Jurisdiction Courts," 2013
  6. Arizona Central, "Maricopa County Judge Norris voted off the bench," November 5, 2014
  7. 7.0 7.1 7.2 7.3 Loyola of Los Angeles Law Review, "Judicial Retention Elections," 2013
  8. 8.0 8.1 New York Times, "Ouster of Iowa Judges Sends Signal to Bench," November 4, 2010
  9. 9.0 9.1 Sky-Hi News, "Judge Ben McClelland discusses the election, judicial system," November 11, 2014
  10. American Judicature Society, "Judicial retention election trends 1964-2006," March 2007
  11. 11.0 11.1 11.2 11.3 11.4 11.5 11.6 11.7 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  12. 12.0 12.1 Chicago Magazine, "The Year We Actually Threw The Bums Out, Or At Least Some Of Them," December 27, 2012
  13. Chicago Tribune, "Outside money pouring into state Supreme Court race," October 29, 2014
  14. Illinois State Board of Elections, "Official Results November 4, 2014, General Election," accessed December 3, 2014
  15. American Judicature Society, "Judicial Selection in the States: Iowa," archived October 12, 2011
  16. USA Today, "Iowa ousts 3 judges after gay marriage ruling," November 4, 2010
  17. The Wall Street Journal, "Grisham's Judicial Appeal," March 20, 2008
  18. Kingsport Times-News, "Tennessee Supreme Court justices vow to defend seats against Ramsey-led attacks," May 10, 2014
  19. Kingsport Times-News, "Some expect costly, divisive justice campaign in Tennessee," May 12, 2014
  20. Tennessee Supreme Court elections, 2014
  21. American Judicature Society, "Judicial Selection in the States: Wyoming," archived November 5, 2011
  22. The Federalist Society, "The Case for Partisan Judicial Elections," January 1, 2003
  23. 23.0 23.1 23.2 23.3 23.4 23.5 23.6 23.7 23.8 NYU Press, "The Study of Judicial Elections," accessed December 27, 2014
  24. American Judicature Society, "History of Reform Efforts," archived October 2, 2014
  25. 25.0 25.1 American Judicature Society, "Merit Selection: The Best Way to Choose Judges," archived October 2, 2014
  26. 26.0 26.1 26.2 American Constitution Society, "Justice At Risk: An empirical analysis of campaign contributions and judicial decision - Key Findings," June 2013, accessed December 9, 2013
  27. Princeton University, "Judicial Independence and Retention Elections," accessed January 5, 2015
  28. The Advocate, "Justice cautions on appointing judges," April 9, 2008
  29. American Judicature Society, "Judicial Retention Evaluation Programs in Four States: A Report with Recommendations," accessed December 9, 2014