Political Science 417 Selecting State Judges Three General Methods of Judicial Selection in the States Appointment By executive By legislative "election" By other judges for some lower courts or assistant judges Election Partisan Nonpartisan Vacancy issue "Merit" selection or "Missouri Plan" Nominating commission Appointment from slate by governor Retention election involving yes/no vote Systematic Variations Regional patterns South: Partisan or nonpartisan elections Midwest: Merit plan or nonpartisan election West: Merit plan or nonpartisan election Northeast: Mixed, including appointment Impacts: does selection method matter? Who is selected What courts do (i.e., nature of decisions) Symbolic politics of judicial selection Independence vs. accountability 1
Politics of Judicial Elections Functions of elections Electoral participation Use some form of judicial elections 30+ states elect some are all justices About 2 to 1, nonpartisan to partisan 20 states have merit retention elections for at least some judges Judicial elections are relatively obscure Elections in Wisconsin President U.S. Senator U.S. House Governor & Lt. Governor Attorney General Superintendent of Public Instruction Secretary of State State Treasurer State Senate State Assembly Supreme Court Court of Appeals County Executive County Supervisor County Coroner County Clerk Clerk of Courts Treasurer Register of Deeds School Board Sheriff Mayor Alderperson Circuit Judge Municipal Judge Elections in Other States Water conservation boards Water and sewer districts Sanitary District (Sewer District) Library boards Drain commissioners Tree warden Civil (as well as criminal) sheriff Assessors Advisory neighborhood commissioners Prothonotary Fence inspector and hog reeve (elected at town meetings in NH, at least until 1980s) Mosquito control board Tax collector Register of wills Community Services Board Community Development District Health District Hospital Board Auditor County engineer Fire control board No dogcatcher! Bridge Authority Supervisor of Elections Public defender County Surveyor Railroad Commissioner (Texas... not a lot to do with railroads) Agricultural Commissioner Inspector of Hides (Texas) Agricultural Extension Council (Iowa) Soil and Water Conservation District Commissioners Natural Resource Districts (Nebraska) Public Power Districts (Nebraska) Reclamation (Nebraska) State Board of Education State Superintendent of Education (Public Instruction) University Board of Regents Secretary of Agriculture (Iowa) Land Commissioner (Texas) Park Board (Minnesota) Cemetery Commissioner 2
Judicial Elections-Texas Style Judicial Selection in Wisconsin Nonpartisan Off-season timing Vacancies filled by governor 75-8 of current judges Use of nominating advisory committees Role of incumbency Wisconsin Supreme Court 10 8 13 of 93 1852-1970 1974-2006 5 of 25 (uncontested) Incumbent Open 3
Wisconsin Lower Courts 1998-2005 10 8 Opposed-Lost Opposed-Won Unopposed Appeals Circuit 25 elections 314 elections Seven Questions Regarding Judicial Elections 1. Where do candidates for judicial election come from? 2. Does anyone really care about judicial elections? How salient are these elections? (turnout) 3. How representative of the entire electorate are those who actually vote? 4. What is the role of partisanship in judicial elections? 5. What is the role of other kinds of "cues" in the electoral process? 6. Are elections an effective tool for getting rid of "bad" judges? 7. How do judicial elections compare to other elections in competitiveness? Candidates for Judicial Elections Where do candidates come from? Criteria for nomination (or party support) Turnout for Judicial Elections "Roll-off" Surge and decline 4
Turnout in Judicial Elections 1948-74 7 5 3 1 Presidential Mid-Term Off-year/Off-Season Partisan Nonpartisan Retention Source: Philip L. Dubois. 1979. Voter Turnout in State Judicial Elections: An Analysis of the Tail on the Electoral Kite. 41 Journal of Politics 865-887. Rolloff in Judicial Elections 1948-74 45% 35% 3 25% 15% 1 5% Presidential Mid-Term Partisan Nonpartisan Retention Source: Philip L. Dubois. 1979. Voter Turnout in State Judicial Elections: An Analysis of the Tail on the Electoral Kite. 41 Journal of Politics 865-887. Representativeness of Judicial Electorate older higher incomes home owners union members long time residents more politically involved 5
How Do Voters Choose? Partisanship Incumbency Ballot labels Name recognition Partisanship of Judicial Elections Voters in partisan states much more likely to cast partisan ballots than voters in mixed or nonpartisan states Greater variation in correlations for specific elections in mixed and nonpartisan states than in partisan states. County by County Analysis 1996 2000 6
Partisan Cues in Judicial Elections Correlation (r) 1 0.8 0.6 0.4 0.2 0-0.2-0.4-0.6 NY PA NM MI OH WI WI Average Maximum Minimum Source: Philip L. Dubois. 1979. The Significance of Voting Cues in State Supreme Court Elections. 13 Law & Society Review 757-779. Partisan Cues in Wisconsin Correlation (r) 1.00 0.90 0.80 0.70 0.60 0.50 0.40 0.30 0.20 0.10 0.00 1949 1950 1952 1956 1961 1963 1964 1965 1967 1969 1973 1974 1975 1976 1977 1978 1979 1980 1983 1989 1990 1994 1995 1996 1997 1999 2000 2003P 2003G Election Year Butler v. Sykes Wilcox v. Kelly 1996: Crooks v. Fine 5 y = -0.007x + 0.3144 R 2 = 0.0001 % for Fine 3 1 1 3 5 % Dem for Governor (1994) 7
1997: Wilcox v. Kelly 5 y = 0.644x + 0.0677 R 2 = 0.4159 % for Kelly 3 1 1 3 5 % Dem for Governor (1994) 1999: Abrahamson v. Rose 9 y = 0.2606x + 0.5279 8 R 2 = 0.1561 7 % for Abrahamson 5 3 1 1 3 5 7 8 9 10 % Dem for Governor (1998) Partisanship in Partisan Judicial Elections 1.0 0.8 Correlation 0.6 0.4 0.2 0.0 1945 1955 1965 1975 1985 1995 2005 Texas Alabama West Virginia Pennsylvania 8
Partisanship in Semi-Partisan Judicial Elections 1.0 0.8 Correlation 0.6 0.4 0.2 0.0-0.2-0.4-0.6 1945 1955 1965 1975 1985 1995 2005 Ohio Michigan Partisanship in Nonpartisan Judicial Elections Correlation 1.0 0.9 0.8 0.7 0.6 0.5 0.4 0.3 0.2 0.1 0.0 1945 1955 1965 1975 1985 1995 2005 Minnesota Wisconsin Washington 2004 Supreme Court Election in Washington 65% Supreme Court 55% 5 45% 35% 3 3 35% 45% 5 55% 65% Governor 9
Firing Judges recall elections impeachment "address" lay judicial commission bench judicial commission electoral defeat Increasing Competition in State Supreme Court Elections 10 Incumbents Challenged 8 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 Nonpartisan Partisan All Source: Melinda Gann Hall. 2001. State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform. 95 Am. Pol. Sci. Rev. 315-30; updated information through 2000 provided by Professor Hall; additional updated information from http://www.justiceatstake.org Percentage Vote for Retention 10 9 8 7 84.3% 76.6% 75.7% 71.5% 5 3 1 1960 1964 1968 1972 1976 1980 1984 1988 1992 1996 2000 Source: Larry Aspin. 1999. Trends in Judicial Retention Elections, 1964-1998. 83 Judicature 79-81. 10
Incumbency 1980-94 State Supreme Court Elections Partisan Nonpartisan Retention 18.8% defeated 8.6% defeated 1.7% defeated Source: Melinda Gann Hall. 2001. State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform. 95 American Political Science Review 315-30. Incumbency Advantage Compared All State SC State Senators 8.3% 9.7% State Reps U.S. House 7.7% 6.2% Judges and Death Penalties Months to Reelection 1-12 13-24 25-36 37-48 49-60 61-72 Expected ~10 ~10 ~10 ~10 ~10 ~10 Observed 18 9 6 12 11 6 11
Are There Alternatives? Bureaucratic model Elite model 12