Special Interests’ Hold on State Courts: The Need for a Fourth Wave of Judicial Election Reform

By Kevin Frazier

History presents a clear lesson: when judicial independence and competence wanes, it’s time for meaningful reform. Contemporary US voters have ignored that lesson in recent decades and must now rally to preserve the legitimacy of state courts and the judicial branch writ large.

A historical perspective shows us that past waves of judicial election reform have sought to enhance judicial independence and increase the odds of selecting competent jurists by altering who has the legal authority to hold judges accountable. Appetite for reform surged when judges became incentivized to decide cases contrary to the public’s interest in a fair and competent judiciary. Though many share those same attitudes today, appetite for meaningful reform appears to be low.

There have been three major waves of judicial election reform in the US: the initial transition to judicial elections from 1846 to 1853,1 the move from partisan elections to nonpartisan elections in the Progressive Era,2 and the decades-long spread of the Missouri Plan—a merit-based system of selecting judges that first took root in Missouri in 1940.3

Reformers—legislators, community leaders, and others devoted to altering the judiciary—have pushed for safeguards of judicial independence and competence over the past two centuries.

These measures have included changes to election laws to mitigate the effects of judges becoming beholden to partisan or corporate actors.4 However, such safeguards failed to diminish the influence of external forces on judges, prompting reformers to advocate for new systems of judicial elections.

The first wave of reform sought to alter the Founding Era system of judicial elections, under which state court judges were appointed by one or both political branches but were generally denied the life tenure afforded to their federal counterparts.5 Reformers recognized that judges in this system had limited checks on other branches if those branches ultimately appointed them. As a result, judges refrained from exercising judicial review and failed to strike down unconstitutional laws.6

In states like New York, the failures of the judiciary inspired reformers to hold constitutional conventions, which allowed them to enshrine significant changes to the judiciary. For example, at the 1846 New York Constitutional Convention, delegates embraced the concept of judicial elections and showed other states how voters could place competent, nonpartisan individuals on the bench.7

By 1853, 20 states had also adopted judicial elections,8 and for a brief period, the system worked: voters elected competent judges who exercised their independence by serving as a robust check on legislative and executive overreach.9

However, political parties recognized that they could manipulate this system by using partisan primaries to select “party hacks” rather than competent judges.

During the Progressive Era, reformers interested in advancing the rule of law drove a second wave of judicial reform by seeking to revive the public’s role in judicial accountability. Political parties had seized the people’s responsibility for holding judges accountable, so reformers advocated for nonpartisan elections—the ballots in these elections do not contain any information on a candidate’s party affiliation.

These second-wave reformers had success in 12 states, each of which adopted nonpartisan elections in the hope of restoring the legitimacy and effectiveness of the courts.10 However, reformers did not realize that voters did not pay close attention to judicial elections. In fact, many voters refrained from casting ballots in judicial races—a phenomenon known as “ballot roll-off.”11 People who attempted to vote often made their decision with little to no information on the judicial candidate and often relied on “irrelevant cues” such as the familiarity of a candidate’s name given that they did not even know the candidate’s party.12

Special interests, such as chambers of commerce and labor unions, realized that these low-information elections gave them room to persuade voters—encouraging them to cast their ballots based on the ideological “correctness” of a judge’s decision rather than the legal caliber of their ruling.13

The formation of the Missouri Plan marked the third wave of judicial reform in the 1960s and 1970s.14 Under the plan, judges were selected by a state judicial commission and/or by the legislative or executive branch of government followed by a retention election—elections that present voters with the decision of whether or not an incumbent judge should serve another term. Therefore, voters only exercised power when deciding whether to retain judges who were originally selected by one or two other branches of government.

This shift enhanced judicial independence and bolstered judicial competence for at least a few years.15 But election laws and norms eventually changed in the 1990s and early 2000s, giving special interests the leverage necessary to seize from voters the power to hold judges accountable. In particular, two U.S. Supreme Court cases—Republican Party of Minnesota v. White and Citizens United v. FEC—permitted special interests to extract specific policy stances from judicial candidates and mobilized partisan factions of voters willing to hold judges accountable to those ideological stances.

The influence of special interests on elections resulted in the appointment of judges who were more familiar with megadonors than major legal treatises and complex areas of the law.16 It also likely generated a chilling effect on honest, qualified candidates who would otherwise have entered judicial races.17 As elections grow more competitive and contentious, some candidates will steer clear of mud-slinging and stay in their lucrative private practice gigs or stable public roles.18

Moreover, because judicial elections occur frequently and are intensely competitive, judges who want to secure another term often issue “friendly” decisions that seek to capture voter support.19 Empirical evidence shows that judges nearing a retention election alter their decisions to appease those who will play a role in their reelection.20

A fourth wave of judicial reform is long overdue. History suggests such a usurpation of the people’s power would lead to reform but that wave has yet to materialize.

In order to preserve the independence and competence of the courts, we need to imagine a new system of judicial elections. A new wave of reforms should seek to preserve ties between the people and the judiciary—with the goal of lending judicial decisions greater legitimacy, restoring public confidence in the judicial branch, and ensuring that competent and independent jurists are placed on the bench.

One reform in particular merits attention: rather than issue majority opinions, concurrences, and dissents authored by individual judges, state courts of last resort should publish a single opinion that identifies “the court” as its author.

In other words, courts should refrain from sharing the vote split in any opinion and end the practice of judges writing concurrences and dissents. This easy fix would limit the ability of special interests to see if their judges are issuing friendly opinions.

Instead, both the public and special interests would be forced to comprehensively evaluate the judicial performance of the courts. In turn, judges could lean on this anonymity to deliberate more earnestly with their colleagues and to issue opinions that reflect their judicial competence, or lack thereof.

Reformers also should consider other means of bolstering judicial independence and judicial competence. For instance, a public financing system for judicial elections would reduce the need of judges to pander to special interests for campaign donations. Likewise, an increase in term length for elected judges would grant judges more time to focus exclusively on issuing the opinion demanded by the law, rather than the one demanded by voters and donors.

What matters most is that reformers begin rallying against the status quo sooner rather than later—the legitimacy of state courts depends on it. Any of the aforementioned reforms would steady the courts in the face of undue pressure from special interests. Without efforts to reduce that pressure, state judiciaries will become super-legislatures responsive to a few powerful interests. Prior generations of reformers collaborated to defend the courts and collectively spread those reforms across the country; now’s the time for another wave.

Kevin Frazier will join the Crump College of Law at St. Thomas University in Miami Gardens, Florida as an Assistant Professor starting in August 2023. He currently is a clerk on the Montana Supreme Court. Kevin graduated from Berkeley Law and the Harvard Kennedy School in May 2022. He tweets using @KevinTFrazier.

Photo credit: Phil Roeder via Flickr

[1] Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 Harv. L. Rev. 1061.        

[2] Dmitry Bam, Voter Ignorance and Judicial Elections, 102 Ky. L.J. 553.

[3] Paul D. Carrington, Judicial Independence and Democratic Accountability in Highest State Courts, 61 Law & Contemp. Prob. 79.

[4] Jesse Sater, The History of Minnesota’s Judicial Elections: A Description and Analysis of the Changes in Judicial Election Law, 10 U. St. Thomas. L.J. 367.

[5] Shugerman at 1073-74.

[6] Id.

[7] Id.

[8] Shugerman at 1066.

[9] Shuherman at 1124-25.

[10] Alex Long, An Historical Perspective on Judicial Selection Methods in Virginia and West Virginia, 18 J. L. & Politics 691, 754 (2001).

[11] Michael K. Romano & Todd A. Curry, Creating the Law: State Supreme Court Opinions and The Effect of Audiences, Routledge (2019) (definition and statistics on ballot roll-off).

[12] Dmitry Bam, Voter Ignorance and Judicial Elections, 102 Ky. L.J. 553, 555 n.29 .(citing Luke Bierman, Beyond Merit Selection, 29 FORDHAM URB. L.J. 851, 854 (2002)) (reporting that voters in non-partisan judicial elections cast “votes based on “irrelevant cues like the familiarity of a candidate’s name, the candidate’s gender, or place on the ballot.”

[13] John F. Koval, Judicial Selection for the 21st Century, Brennan Center (June 6, 2016), https://www.brennancenter.org/our-work/research-reports/judicial-selection-21st-century

[14] James Sample, Retention Elections 2.010, 46 U.S.F. L. Rev. 383, 400 (2011)

[15] Carrington at 97.

[16] Charles, R. Raley, Judicial Independence in the Age of Runaway Campaign Spending: How More Vigilant Court Action and Stronger Recusal Statutes Can Reclaim the Perception of an Independent Judiciary, 62 Case W. Res. 175, 180-82 (2011)

[17] Marie A. Failinger, Can a Good Judge Be a Good Politician? Judicial Elections from a Virtue Ethics Approach, 70 Mo. L. Rev. 433, 499 (2005).

[18] Id.

[19] Long at 708.

[20] Raley at 180-82.