Nonpartisan election of judges
| 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 |
The nonpartisan election of judges is a selection method where judges are chosen through elections where they are listed on the ballot without an indication of their political affiliation. If a primary election is held, it is not to narrow the candidates to one from each party. Instead, these primary elections typically narrow the field to two candidates for the general election.
As of April 2024, 13 states used nonpartisan elections at the state supreme court level, and 19 states used this selection method for at least one type of court below the supreme court level.
Other methods of judicial selection include: partisan election, the Michigan method, assisted appointment, gubernatorial appointment, court appointment, municipal government selection, and legislative elections. To read more about how these selection methods are used across the country, click here.
How nonpartisan elections work
Though the basic premise of nonpartisan elections is the same from state to state, there is some variation in how the elections are conducted. Below are examples of how nonpartisan elections were administered in different states, as of 2023.
- Arkansas: All candidates compete in a primary election. If one candidate receives more than 50 percent of the vote, that candidate wins the election outright. Otherwise, the top two vote-getters compete in the general election.
- Idaho: All candidates compete in a general election. If one candidate receives more than 50 percent of the vote, that candidate wins the election outright. Otherwise, the top two vote-getters compete in the runoff election.
- Kentucky: All candidates compete in a primary election, with the top two vote-getters advancing to the general election. Candidates cannot win the election outright in the primary.
- 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.
- North Dakota: All candidates, whether opposed or unopposed, participate in the primary and general elections. If only two candidates are running for a seat, they compete in both elections.
- Oregon: In the case of a midterm vacancy for a seat that would otherwise have not appeared on the ballot that year, the primary may be skipped if only one or two candidates file for that office. If three or more candidates are running for that seat, however, they compete in the primary. If any of them receives over 50% of the vote in the primary, that candidate's name appears unopposed on the general election ballot. If no candidate receives a majority, then the top two vote-getters advance to the general election.
States using this method
State supreme courts
At the state supreme court level, the following states use this selection method: Arkansas, Georgia, Idaho, Kentucky, Minnesota, Mississippi, Montana, Nevada, North Dakota, Oregon, Washington, West Virginia, and Wisconsin.
The map below highlights selection methods in state supreme courts across the country.
The chart below details selection methods in state supreme courts across the country.
| Judicial selection methods in state supreme courts | ||||||
|---|---|---|---|---|---|---|
| Partisan election | Nonpartisan election | Gubernatorial appointment | Legislative election | Michigan method | Assisted appointment | |
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| Total: 8 states | Total: 13 states | Total: 5 states | Total: 2 states | Total: 1 state | Total: 21 states & D.C. | |
Intermediate appellate and general jurisdiction courts
In selecting judges for the intermediate appellate and general jurisdiction courts, 16 states use nonpartisan elections for at least one type of court. The chart below details selection methods at these court levels across the country.
| Judicial selection methods in intermediate appellate and general jurisdiction courts[1] | ||||||
|---|---|---|---|---|---|---|
| Partisan election | Nonpartisan election | Gubernatorial appointment | Legislative election | Assisted appointment | Combination of assisted appointment and other methods | |
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| Total: 9 states | Total: 16 states | Total: 4 states | Total: 2 states | Total: 14 states & D.C. | Total: 9 states | |
Arguments in support of nonpartisan elections
In a paper published for the University of Chicago Law School in 2010 titled "Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary," the authors wrote:[2]
| “ | Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).[3] | ” |
In a paper published in the Quarterly Journal of Political Science in 2007 titled "The Effect of Electoral Competitiveness on Incumbent Behavior," the authors wrote:[4]
| “ | Broadly speaking, there are two mechanisms by which elections might produce faithful representation on the part of elected officials. The first is selection. Ideally, competitive elections allow voters to choose candidates whose preferences most closely mirror their own (Downs 1957, Fearon 1999). In the selection account, the presence of challengers facilitates a closer match between voters and their representatives through the provision of alternatives. The second mechanism is the incentive effect of elections (Barro 1973, Ferejohn 1986). Even those incumbents who do not share their constituents’ preferences or possess strong qualifications may nonetheless behave faithfully or work hard if their failure to do so will result in their subsequent punishment at the polls.[3] | ” |
In a report published in 2006 by the Center for American Progress titled Partisan Judicial Elections and the Distorting Influence of Campaign Cash, author Billy Corriher wrote:[5]
| “ | 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. Simply labeling a judge as a Republican or Democrat probably tells most voters little about how the judges will decide cases.[3] | ” |
Arguments in opposition to nonpartisan elections
In a white paper released in January 2003 by The Federalist Society titled The Case for Judicial Appointments, the authors wrote:[6]
| “ | The empirical evidence increasingly demonstrates that where there are partisan or even non-partisan elections, judges either feel pressure to conform to popular opinion or to favor the interests of those who contribute to their judicial campaigns. As trial lawyers have become increasingly important contributors to such campaigns the cause of civil justice reform has suffered, as elected judges have, for the most part, been more likely to frustrate the reform efforts of legislatures.[3] | ” |
In a paper published in 2006 by the Brennan Center for Justice titled Rethinking Judicial Selection in State Courts, author Alicia Bannon wrote:[7]
| “ | At the same time judicial election spending has grown, judicial races have also become increasingly political and partisan. Justice requires that judges put aside their political preferences and loyalties when deciding cases, and rule based on their understanding of the law and the facts at issue. But when judges look no different than other politicians during the election season, it creates the appearance — and perhaps also the reality — that they will not be able to avoid political biases when they sit in the courtroom.[3] | ” |
In an article published in 2009 by the Wisconsin Law Review, professors Brandice Canes-Wrone and Tom S. Clark wrote:[8]
| “ | In partisan systems, voters know a candidate’s partisan affiliation, which they can presume will correlate at some level with a judge’s philosophy and ideological leanings. Nonpartisan elections, by comparison, provide no such cue. As a consequence, in nonpartisan systems interest groups and others can more easily shape voters’ perceptions of a judge by publicizing isolated rulings.[3] | ” |
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.[9] 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.[10] 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.[11][12]
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.[12]
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.[12]
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.[12]
| “ | 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.[12][3] | ” |
| —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.[11]
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.[12]
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.[12][13]
See also
External links
Footnotes
- ↑ States may use different selection methods for different courts in their state; in such cases, a state is listed for each selection method use for intermediate appellate and general jurisdiction courts.
- ↑ Choi, Stephen, Mitu Gulati, and Eric A. Posner. "Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary." John M. Olin Law & Economics (2d series), Working Paper No. 357. (August 2007).
- ↑ 3.0 3.1 3.2 3.3 3.4 3.5 3.6 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Gordon, Sanford and Gregory Huber. "The Effect of Electoral Competitiveness on Incumbent Behavior." Quarterly Journal of Political Science, 2:107-138. (2007).
- ↑ Center for American Progress, "Partisan Judicial Elections and the Distorting Influence of Campaign Cash," October 25, 2012
- ↑ The Federalist Society, "The Case for Judicial Appointments," January 1, 2003
- ↑ Brennan Center for Justice, "Rethinking Judicial Selection in State Courts," accessed June 7, 2021
- ↑ Wisconsin Law Review, "Judicial independence and nonpartisan elections," March 14, 2009
- ↑ 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
- ↑ 11.0 11.1 American Judicature Society, "History of Reform Efforts," archived October 2, 2014
- ↑ 12.0 12.1 12.2 12.3 12.4 12.5 12.6 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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