JUDICIAL SELECTION IN WASHINGTON: WHERE HAVE WE BEEN AND WHERE

SHOULD WE GO?

David C. Brody, J.D., Ph.D.Associate Professor

Washington State University Spokane

Nicholas P. Lovrich, Ph.D.C.O. and Mary W. Johnson Distinguished Professor

Director, Division of Governmental Studies & Services Washington State University

 

WHY ELECT JUDGES?

• All power residing originally in the people and being derived from them, the officers of the government, including the judiciary are their substitutes and agents and are at all times accountable to them.

• Article V, 1780 Massachusetts Constitution

Goals of Judicial Elections

• Give people the power to select their judges

• Limit power of governor/appointing authority

• Preserve independence from other branches of government

• Check on judicial abuse of power

• Have the best people possible serve as judges

• Elections educate the public on the importance of judicial independence in the context of popular election

Assumptions Underlying a Judicial Election System

• Judges will reach the bench via election

• Incumbent judges will be accountable to voters

• Voters will have sufficient information upon which make an intelligent electoral decision

AXIOM OF 80%

• 80% of people don’t vote in judicial elections

• 80% unable to identify candidates

• 80% believe elected judges influenced by campaign contributions

• 80% of elections uncontested

• 80% of public wants judges to be elected

– Source: Maute (2000), South Texas Law Review

Five Items to be Considered

1. Judicial selection: Appointment or election?

2. Accountability of incumbents to voters

3. Effect money has on elections

4. Low levels of voter participation

5. Limited number of contested elections

Sources of Information and Conventions Used

• Election results information– Secretary of State– Administrative Office of the Courts– County Auditor Offices

• Campaign finance information– Public Disclosure Commission (Forms B, C-1,

C-4, and L) reports submitted by candidates.

Conventions Used in Research

• Candidates who opted to limit their expenses and file “mini-reports” had the maximum allowable campaign expenditures attributed to them ($1,500-$3,500).

• Loan amounts not repaid prior to election counted as expenditure.

• In-kind contributions counted as expenditure at candidate stated value

In Washington most judges reach the bench by being appointed by the Governor.

Topic 1 Judicial Selection in Washington:

Appointment or Election?

• Supreme Court Over 50% of all Justices initially appointed

• Court of Appeals 14 of the 21 current Judges were appointed

• Superior Court111 (58%) of current judges appointed to bench

Following appointment, judges are still accountable to the voters…

Right?

Post-Appointment Accountability

• Since 1994 in the 5 largest counties 74 people have been sworn in as new judges of the Superior Court.

–73% (54) were appointed to bench

–45% (33) of these judges have NEVER stood for election.

Topic 2

Incumbency

A. Do voters have the opportunity to evaluate the performance of incumbent judges at the ballot box?

B. What effect does incumbency have on judicial elections?

SUPERIOR COURT JUDGES FACING REELECTION CHALLENGES*

28 7 15

133156 152

0

20

40

60

80

100

120

140

160

180

1996 2000 2004

IncumbentUnchallenged

IncumbentChallenged

*Open seat contests omitted

Superior Court Incumbents2004

2 judges lost elections (1.25% of non-retiring judges)

20002 judges lost elections (1.23% of non-retiring judges)

1996

9 judges lost elections (5.59% of non-retiring judges)

Incumbency and the Appellate Bench

• Since 1992, only 1 sitting Supreme Court Justice and 3 sitting Court of Appeals Judges have lost a reelection bid.

– Only 7 Court of Appeals judges have been challenged

Why is this so?

• Sitting judges doing great job

• Local culture

• Potential challengers can’t overcome Judge’s name recognition

• Too expensive to mount an effective campaign that is likely to fail.

Topic 3 Money in Judicial Elections

Money in Judicial ElectionsMoney in judicial elections can be:

A. A necessary evil.

or

B. The conduit for speech

In reality, absent a publicly funded campaign system it is both a necessary evil and conduit for speech.

Concerns about Money and Judicial Campaigns

• Judges and candidates need to chase the money to effectively campaign

• Impact of special interest contributions

• Appearance of attorney and current judge contributions

• Undue advantage to wealthy individuals

How much influence do you think campaign contributions made to judges have on their decisions?

PUBLIC JUDGES

A great deal of influence 36% 4%

Some influence 40% 22%

Just a little influence 14% 20%

No influence 5% 36%

Don’t know/refused 5% 18%

2001 Greenberg Quinlan Rosner Research Inc. for Justice at Stake

Money in Washington’s Judicial Elections• In Supreme Court elections no clear

patterns exist on source of funds and effect of campaign war chest.– Candidates who have raised large sums of

money have been defeated.– Primary source of funds are from the

attorneys and candidate– While many candidates have received

significant contributions from “special interests” (PACs, unions, political parties, trade and professional associations), only a few elections have seen huge amounts.

Money in Washington’s Judicial Elections

• In Superior Court and Court of Appeals elections there are limited contributions from interest groups.

• Most campaigns are self-funded or strongly supported by attorney contributions.

SUPREME COURT ELECTIONS 1990-2004Average Campaign Expenditures

$41,617

$63,150

$104,401

$84,370

$142,723

$67,729

$118,400

$162,754Primary

2 PersonPrimary

GeneralElection

Lost Won Qualified for Runoff Plurailty Winner

COURT OF APPEALS ELECTIONS 1996-2004

$15,700

$29,712

$14,208

$38,293

$50,033

$109,357

$14,208

$109,357

$0 $20,000 $40,000 $60,000 $80,000 $100,000 $120,000

Primary

2 PersonPrrimary

General

Lost Won Qualified for General Plurailty Winner

2004 CONTESTED SUPERIOR COURTAverage Campaign Expenditures

$16,459

$40,943

$41,839

$70,202

$28,189$70,202

$28,189

$16,128

Primary

2 PersonPrimary

General

Lost Won Qualified for General Plurailty Winner

Relative Money vs. Total Money

• While a candidate’s total amount of campaign funds is important, a candidate’s war chest relative to his/her opponents’ funds is more important.

Who is better off?

Race 1

Candidate A $200,000

Candidate B $200,000

Race 2

Candidate A $75,000

Candidate B $5,000

How Does Money Help?

Ordinary Least Squares Regression Controlling for incumbency

1% increase in relative campaign funds leads to a .33% increase in percent of vote.

10% increase associated with 3.3% increase in vote received

Topic 4

Voter Participation in Judicial Elections

Voter Participation and Falloff

• Invariably many voters who vote in an election do not vote for in judicial races.

• National studies have shown about a 20% “FALLOFF” from the total number of ballots returned in a jurisdiction to the number of votes cast in judicial elections.

• Sheldon’s research on Washington’s judicial elections shows that this is due primarily to lack of knowledge of the candidates.

SUPREME COURT FALLOFF 1984-2004

67.67%75.13%

33.33% 24.87%

0%

20%

40%

60%

80%

100%

Primary General

Falloff Amount

Voted for Judge

Percent of Voters Voting in 2004 Superior Court Primary Election

55.71

63.12

77.36

60.15

84.09

73.4

86.47

64.92

52.38

67.32

66.1

23.24

27.22

34.17

25.53

30.75

36.71

48.95

33.69

31.49

29.54

29.99

10 20 30 40 50 60 70 80 90 100

Whatcom

King

Spokane

Thurston

Yakima

Chelan

Jefferson

Kitsap

Lincoln

Pierce

Snohomish

% of Registered Voters

% of Actual Voters

Average Voting Rate % of Turnout 68.36% % of Reg. Voters 31.93%

Percent of Voters Voting in 2004 Superior Court General Election

79.56

70.61

70.58

78.38

88.22

68.61

58.6

66.63

64.86

66.94

10 20 30 40 50 60 70 80 90 100

Whatcom

King

Spokane

Thurston

Yakima

% of Registered Voters

% of Actual Turnout

Average Voting Rate % of Turnout 78.24% % of Reg. Voters 64.04%

Can Falloff be Reduced?

• Yes, by increasing information available to voters.

• Voters pamphlet a good start, but candidate self-description viewed somewhat cynically.

• Some states use Judicial Performance Evaluations to provide information to voters.

Judicial Performance Evaluation Programs

• Independent commission of citizens, attorneys and judges collect information about judges from several sources– Attorneys having appeared before the judge– Jurors– Repeat witnesses– Affidavit records– Judicial disciplinary actions

• Objective information provided to voters in voter’s pamphlet without comment on how to vote

Facts About Judicial Performance Evaluation Programs

• JPE programs do not tell voters how to vote

• JPE programs are not conducted by the government or bar “elitists”.

• JPE programs go beyond bar polls and obtain info from everyday people

• JPE programs simply provide a piece of objective information for voters to consider

JPE Programs are Popular Among Judiciary and Voters

• Prior to implementation judges have been strongly opposed while voters supportive

• In states with JPE programs Judges have overwhelmingly endorsed their continued use.

• Research has found that voters in states with JPE programs have lower Falloff rates and are better informed about judges

• AJS pilot studies of Washington Judges were viewed positively by Judge participants and have received national attention.

Topic 5

The Dearth of Contested Elections

The Dearth of Contested Elections

• Having judges selected by popular election assumes that there will be contested elections

• In Washington the vast majority of judicial elections are uncontested.

• Why is this so?– Sitting judges doing great job– Local culture– Potential challengers can’t overcome Judge’s name

recognition– Too expensive to mount an effective campaign that is

likely to fail.

COURT OF APPEALS ELECTIONS 1992-2004

1

2

1

4

2

1

4

1

5

3

1

7

4

1 3

10

1

2

3

4

5

6

7

8

9

2004 2003 2002 2000 1999 1998 1996 1995 1994 1993 1992

UncontestedContested

Overall 75% of elections have been uncontested

SUPERIOR COURT ELECTIONS

40

19 23

135 152156

020406080

100120140160180200

1996 2000 2004

Uncontested

Contested

Overall 85% of elections have been uncontested

Percent of Superior Court Elections Contested 1996-2004