Judicial Elections Still Fair and Balanced?

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Reformers from bar associations to Corporation grantees such as the Brennan Center for Justice at New York University and the Committee for Economic Development—an independent, nonpartisan organization of business and education leaders dedicated to policy research on the major economic and social issues of our time, including campaign finance reform—are advocating significant reforms in the selection of judges.

Major reforms include:

Public Disclosure
Interest group “issue” ads used to support or defeat judicial candidates have been exempt from campaign finance disclosure rules in most states, but interest in changing that is growing. Disclosure would include who gave and how much and how the money was spent.

In 2003, Illinois adopted requirements for full disclosure and electronic submissions that enabled the public and media to read and understand who gave how much to both candidates and campaign committees. The electronic disclosure had an immediate benefit in the 2004 Supreme Court election by documenting timely data about the millions of dollars being spent for the open seat finally won by Justice Karmeier.

In 2004, Ohio adopted broad disclosure requirements to end the use of television ad campaigns funded anonymously. Although the system is yet untested in an election, according to the Justice at Stake Campaign, “The days of expensive court campaigns in Ohio are not banished to history, but voters will get much better information about who is bankrolling judicial candidates when they need it—during the heat of election campaigns.”

Merit Selection and Retention Elections
Long favored by the American Bar Association, the American Judicature Society and others, this process would replace direct election of state judges, but also not rely solely on appointment by a governor and confirmation by the legislature. Although only several states use merit selection for all of their judges, about two-thirds of states use variations of this system, albeit limited to only a few judgeships. Called the “Missouri Plan,” because that state adopted this system in 1940, it is a hybrid of both appointment and elections.

Such a system was proposed in 2005 to replace Pennsylvania’s system of partisan elections for state judges. Backed by the Pennsylvanians for Modern Courts, allied with the Justice at Stake Campaign and other legal organizations, it would establish a bi-partisan, citizen-based nominating commission appointed by the governor and legislative leaders. The commission would screen candidates and compile a list of the most qualified, from which list the governor would fill a judicial vacancy. The judges would face voters every six or ten years, depending on the level of their court, in unopposed retention elections.

Voter approval has been an obstacle to amending state constitutions to establish or expand merit selection systems. Utah, in 1984, was the last state to approve such a system, which has failed to win approval in several state referenda since then. For example, in 1998, Florida’s Constitution Revision Commission won approval for a local option to extend the system of merit selection and retention currently in place for state appeals court judges and Supreme Court justices to also apply to trail judges in local circuit and country courts but voters in every one of sixty-seven counties rejected it in separate referenda in 2000 and continue to select trial judges in nonpartisan elections; the average vote for the change was only thirty-two percent. State minority and women’s bar associations campaigned against merit selection worried that the change would reverse the progress they recently made in gaining judgeships.

Public Financing of Judicial Elections
Bowing to public reluctance to give up their right to vote for judges, many reformers instead propose public financing of judicial elections, eliminating the need for candidates to raise money from self-interested donors. In the 1970s, Wisconsin was the first state to adopt public financing, albeit limited to Supreme Court justices.

North Carolina adopted such a system in 2002 for its two highest courts, with candidates eligible for public funds if they limited their private fundraising and showed broad support by collecting small contributions from at least 350 registered voters. The reform law also included a change to nonpartisan elections, a voter’s guide and lower maximum contribution limits for candidates who forgo public funds.

In its first test, in 2004, the North Carolina system won praise for providing two-thirds of all funds spent by candidates and cutting by half the money collected from special interests. Other states, such as Illinois and Georgia, are considering public financing systems.

Voter Guides
Low voting rates in judicial elections reflect the lack of information (and long lists of candidates, offices, and ballot initiatives) in state elections. One analysis of retention elections nationwide from 1976 to 1996 found that 30 percent of those who voted at the top of a ballot did not cast votes in retention elections farther down the ballot.

Several states have begun to publish nonpartisan voter guides with background information on judicial candidates distributed either online or by mail, encouraged by at least one poll in which two-thirds of respondents stated that receiving a voter guide would make them more likely to vote in those races. In fact, voter guides mailed to every registered voter in North Carolina in 2004 did help reduce voter roll-off in judicial races.

Distribution can be a problem, as Washington state reformers found in learning that most voters did not find the guides published in the state’s newspapers and rarely used the online guides, suggesting that a comprehensive mailing of guides to all voters is more workable.

Campaign Conduct Committees
The U.S. Supreme Court ruling in 2002 against certain restrictions on judicial campaign speech (the aforementioned Republican Party of Minnesota v. White, in which the Court ruled that a provision of Minnesota’s Code of Judicial Conduct prohibiting a candidate for judicial office from discussing his or her views on a political issue violated the First Amendment protection of free speech), helped unleash the overheated rhetoric and negative ads of the 2004 election. At least 10 states have established either official or unofficial committees to act as impartial referees to counter or deter inappropriate campaign appeals in judicial elections.

For example, the Alabama Supreme Court expanded its committee to include twenty-six members with the authority to investigate disputes and to hold candidate forums in the 2000 election. Several state committees were active in 2004, most notably in Florida, Georgia, Illinois and Ohio.

In Conclusion: It’s Up to the Public
Heightened awareness of the new power of special interest influence in selecting America’s judges has many researchers and reformers working to understand this problem better, and each new election cycle provides new evidence that meaningful changes are necessary.

Considerable resistance to change will continue. But, as the long history of Carnegie Corporation support for organizations working for equal rights and equal treatment under the law certainly indicates, we believe that the American public has a special regard for a court system that is open and fair to all who seek justice. And undoubtedly, increasing public recognition of the fact that judicial elections should not be up for grabs by the highest bidders or most strident candidates will make the prospects for reform in the years ahead grow stronger.

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