Retention election
| Methods of judicial selection |
|---|
 |
| Election methods |
| Partisan election |
| Nonpartisan election |
| Michigan method |
| Retention election |
| Assisted appointment |
| Assisted appointment |
| Bar-controlled commission |
| Governor-controlled commission |
| Hybrid commission |
| Direct appointment |
| Court appointment |
| Gubernatorial appointment |
| Legislative election |
| Municipal government selection |
A retention election is a type of election where 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 certain percentage of voters (often 50%) indicate that he or she should not be retained.[1]
Retention elections are not an initial selection method. Instead, they are used in combination with another initial selection method. Retention elections are most frequently used with assisted appointment selection methods, though certain states with partisan or nonpartisan elections also use retention elections for subsequent terms.[2]
Other methods of judicial selection include: partisan and nonpartisan elections, the Michigan method, assisted appointment, gubernatorial appointment, and legislative elections. To read more about how these selection methods are used across the country, click here.
How retention elections work
In a retention election, a sitting judge is listed on the ballot for a yes-no vote. In most cases, judges must receive a majority of yes votes to remain on the bench. If a judge receives a majority of no votes, he or she is removed from the bench and a replacement is selected using the state's method for selecting judges in case of a vacancy. Some states impose supermajority requirements on this vote, requiring judges to receive a threshold higher than 50% on the yes vote to remain in office.
- Montana: If no candidate files to run against the current incumbent, the next election will be a retention election. If more than one candidate files, then a nonpartisan election will take place.
- New Mexico: If no candidate files to run against the current incumbent, the next election will be a retention election. If more than one candidate files, then a partisan election will take place. New Mexico also requires at least 57% of voters to vote yes for a judge to win a retention election.
States using this method
State supreme courts
As of April 2023, at the state supreme court level, the following states use retention elections: Alaska, Arizona, California, Colorado, Florida, Illinois, Indiana, Iowa, Kansas, Maryland, Missouri, Montana, Nebraska, New Mexico, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, and Wyoming.
Intermediate appellate and general jurisdiction courts
In selecting judges for the intermediate appellate and general jurisdiction courts, 19 states use retention elections for at least one type of court.[2]
Arguments in support of retention elections
In a paper published in 2009 in the Missouri Law Review, professor G. Alan Tarr wrote:[3]
| “ | Proponents of merit selection have identified several ways in which retention elections are superior to contested elections, whether partisan or non-partisan. First, retention elections serve to depoliticize judicial selection, thereby promoting judicial independence and impartial decision-making. Second, by replacing contested elections with a simple yes-or-no vote on incumbents, retention elections reduce the likelihood of negative campaigning and the need for judges to solicit sizable campaign contributions, thereby avoiding practices that undermine respect for the judiciary. Third, by eliminating party affiliation and other irrelevant cues for voting, retention elections encourage voters to focus on judicial experience and performance, thereby promoting better voter choice. Finally, as a result, retention elections lead to a highly qualified judiciary.[4] | ” |
In an article published in November 2012 by the Center for American Progress Action Fund titled Merit Selection and Retention Elections Keep Judges Out of Politics, Billy Corriher wrote:[5]
| “ | This brief argues that, despite this risk, merit selection and retention elections offer a far better alternative to contested elections. Judges must be independent from political pressure so they can vindicate constitutional rights without fear of political backlash. The judiciary is the only institution that can remedy violations of the constitution by the other branches of government. At the first step of the process, merit selection frees a potential judge from political influence by focusing on his or her qualifications, not on the ability to make deals with legislators or rake in campaign contributions. Retention elections, the second step of the process, subject judges to much less political pressure than contested elections and offer greater judicial independence. Although some recent retention elections have become politicized, these systems can provide the public with unbiased, neutral information on a judge’s qualifications and record. This allows voters to focus on merit and not on one or two politicized, high-profile cases.[4] | ” |
Arguments in opposition to retention elections
In a white paper released in January 2003 by The Federalist Society titled The Case for Judicial Appointments, the authors wrote:[6]
| “ | There are apparently several problems with the retention elections, the other prominent feature of "merit selection." At least one commentator has noted that even retention elections can force judges to behave like politicians. It does seem to be true, however, that judges themselves do not favor eliminating retention elections, although most judges do believe that their behavior on the bench is affected by the fact they face retention elections. Some twenty states now have retention elections, with terms varying from four to twenty years, with six years as the most common judicial term. The precise influence of retention elections is elusive, because almost 99 percent of judges are returned to office in retention elections. One explanation for the low voter interest in retention elections, where they are uncontested and/or nonpartisan, is that there is little public awareness of the issues involved, or the prior behavior of candidates for retention. Without a party label to go on, and without any substantial information on the candidates, the public has little on which to base a retention decision vote, and the outcome seems to be to leave things as they are.[4] | ” |
In a paper published in 2016 in the Florida Law Review, then-Florida Supreme Court Justice Barbara Pariente and lawyer F. James Robinson Jr. wrote:[7]
| “ | The judicial-merit selection and retention system for appointing judges to the bench was designed to emphasize selection based on the judge’s qualifications and to minimize the influence of partisanship and politics in both the selection and retention process. Since 2010, increasingly strident and frequent political attacks on state supreme court justices facing judicial-merit retention elections present real dangers to a fair and impartial judiciary. These attacks are inherently different from the challenges facing the judiciary in states where supreme court justices are selected in contested judicial elections, especially those states that have partisan elections. Recent judicial-merit retention elections of state supreme court justices across the country demonstrate the danger that arises when justices are targeted for defeat based solely on disagreement with a judicial decision.[4] | ” |
Judicial selection methods
Each state has a unique set of guidelines governing how they select judges at the state and local level. These methods of selection are:
Election
- Partisan election: Judges are elected by the people, and candidates are listed on the ballot alongside a label designating political party affiliation.
- Nonpartisan election: Judges are elected by the people, and candidates are listed on the ballot without a label designating party affiliation.
- Michigan method: State supreme court justices are selected through nonpartisan elections preceded by either partisan primaries or conventions.
- Retention election: A periodic process whereby voters are asked whether an incumbent judge should remain in office for another term. Judges are not selected for initial terms in office using this election method.
Assisted appointment
- Assisted appointment, also known as merit selection or the Missouri Plan: A nominating commission reviews the qualifications of judicial candidates and submits a list of names to the governor, who appoints a judge from the list.[8] At the state supreme court level, this method is further divided into the following three types:
- Bar-controlled commission: The state Bar Association is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees that they must choose from.
- Governor-controlled commission: The governor is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees they must choose from.
- Hybrid commission: The judicial nominating commission has no majority of members chosen by either the governor or the state bar association. These commissions determine membership in a variety of ways, but no institution or organization has a clear majority control.
Direct appointment
- Court appointment: Judges are selected by judges in the state judiciary.
- Gubernatorial appointment: Judges are appointed by the governor. In some cases, approval from the legislative body is required.
- Legislative election: Judges are selected by the state legislature.
- Municipal government selection: Judges are selected by the governing body of their municipality.
Brief history of judicial selection
At the founding of the United States, all states selected judges through either gubernatorial or legislative appointments.[9] In 1832, Mississippi became the first state to implement judicial elections. New York followed suit in 1846, and a national shift occurred as states joined them. By the time the Civil War began in 1861, 24 of the 34 states had an elected judiciary, and every state that achieved statehood after the Civil War provided for the election of some—if not all—of its judges.[10][11]
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 elevated the voice of the average American.[11]
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 led an effort to restore what they called "the traditional respect for the bench," which they said had been lost.[11]
One other popular selection method was the nonpartisan election of judges, first implemented by Cook County, Illinois 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.[11]
| “ | 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][4] | ” |
| —Associate Professor Matthew J. Streb of Northern Illinois University | ||
Though states continued to experiment with selection methods throughout the next century, the methods of legislative elections and direct gubernatorial appointments did not see a return. No state that achieved statehood after 1847 had an original constitution calling for these methods except Hawaii, whose judges were initially chosen by gubernatorial appointment with senate consent.[10]
By 1927, 12 states selected judges in nonpartisan elections. Critics claimed that as long as judges had to campaign for office, politics would still play a role. Other critics questioned whether citizens would be able to cast informed ballots in nonpartisan judicial elections, offering the assumption being that party affiliation communicates a candidate's values in an easy shorthand. Three states that had experimented with nonpartisan elections switched back to partisan ones by 1927.[11]
Out of these concerns arose a third kind of election, the retention election, which the American Judicature Society argued encapsulates the positive aspects of each selection system. Retention elections were meant to work within the assisted 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 assisted appointment method as we know it today, and since then more than thirty states followed suit, using some form of retention elections at some level of their judiciary.[11][12]
See also
External links
Footnotes
- ↑ American Judges Association, "The Debate over the Selection and Retention of Judges," 2010
- ↑ 2.0 2.1 American Judicature Society, "Methods of Judicial Selection," accessed June 21, 2021
- ↑ Tarr, G. Alan. "Do Retention Elections Work" Florida Law Review Volume 74 Issue 3 (Summer 2009).
- ↑ 4.0 4.1 4.2 4.3 4.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Center for American Progress Action Fund, "Merit Selection and Retention Elections Keep Judges Out of Politics," November 1, 2021
- ↑ The Federalist Society, "The Case for Judicial Appointments," January 1, 2003
- ↑ Pariente, Barbara and F. James Robinson. "A New Era for Judicial Retention Elections: The Rise of and Defense Against Unfair Political Attacks." 68 Florida Law Review 1529 (2016).
- ↑ American Bar Association, "Judicial Selection: The Process of Choosing Judges," accessed August 10, 2021
- ↑ Brennan Center for Justice, "Rethinking Judicial Selection in State Courts," accessed June 7, 2021
- ↑ 10.0 10.1 American Judicature Society, "History of Reform Efforts," archived October 2, 2014
- ↑ 11.0 11.1 11.2 11.3 11.4 11.5 11.6 NYU Press, "The Study of Judicial Elections," accessed December 27, 2014
- ↑ American Judicature Society, "Judicial Selection in the States: Appellate and General Jurisdiction Courts," 2013
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