The Effect of State Elections on Judicial

Decision-Making
Steve Albert

Perhaps every school child learns in civics class about the Constitution and its stipulation that

federal judges are appointed for life terms. But most of those school children, when they go to pay their

first traffic tickets, do not realize how the judge before whom they appear got on the bench. At least

some judges in thirty-nine states are elected, and elected judges hear the majority of cases in the United

States.1 What are the implications of judges running for election? Does it make them less impartial,

more respondent to the public will, or more open to political corruption?

Methods of Selecting Judges

There are four main methods in the United States for selection of judges at the state level:

partisan election, nonpartisan election, merit-based selection, and appointment by the executive.2

While judicial elections work substantially in the same manner as election to political office in a

legislature or executive office, some states, such as Illinois, have retention elections, whereby the voter

will be asked whether or not a certain judge should retain their office or not, followed by a new election

if the judge is not retained, dies, or is removed from office.3

Other states have merit-based systems where a board or panel of attorneys and/or citizens

selects judges to be confirmed by the governor and/or legislature. For example, in Alaska, a Judicial

1
"State Judicial Elections." Brennan Center for Justice. New York University, Retrieved April 11, 2012.
<http://www.brennancenter.org/content/section/category/state_judicial_elections>.
2
Some states have hybrids composed of elements of two or more of these systems.
3
Illinois Constitution, Article VI, Section 12.
Council selects two nominees for each judicial vacancy, which are then sent to the governor for

selection. The council is made up of three attorneys, selected by the bar association, three laymen,

selected by the governor and the legislature, and the Chief Justice.4 Still other states, like California,

have their governor appoint judges, which are then confirmed by either the legislature or some other

commission or council.

Electing Judges: Good or Bad?

The United States is the only country in the world that elects judges.5 "Originally states'

governors selected judges with confirmation by the states' senates," said retired Supreme Court

Justice Sandra Day O’Connor recently. "But then the great populist President Andrew Jackson

persuaded Georgia to begin electing its judges.”6 This, of course would fly in the face of the old

saying that judges and constitutions “put the brakes on democracy.” While it is true that

elected judges would be more accountable to the people, are there cons to judicial elections?

Do campaign contributions influence decisions?

One recent Supreme Court case highlighted an extreme negative outcome of judicial

elections: Caperton v. A. T. Massey Coal Co. In that case, a lawsuit by Caperton, the owner of

another coal company, against the A. T. Massey Coal Company for contract fraud, $50 million

was awarded by the jury to the plaintiffs. While the case was on appeal to the West Virginia

4
Selecting and Evaluating Alaska’s Judges: 1984 – 2007. Alaska Judicial Council. August 2008.
5
Wilhelm, Joe Jr. “O’Connor Against Judicial Elections.” Daily Record. Retrieved April 12, 2012.
<http://www.jaxdailyrecord.com/showstory.php?Story_id=534469>. According to an article by Michael J. Ellis for
the Yale Law Journal, the United States is also the only country that elects prosecutors. The Origins of the Elected
Prosecutor, 121 YALE. L.J. 1528.
6
“Sandra Day O’Connor: Where Judges Can Be Bought and Sold.” know wpc [sic]. WPC School of Business, Arizona
State University. January 28, 2009. Retrieved April 12, 2012.
<http://www2.liu.edu/cwis/cwp/library/workshop/citmla.htm>
Supreme Court, Don Blakenship, the Chairman of Massey, gave $3 million in campaign

contributions to Brent Benjamin, a candidate for the West Virginia Supreme Court. That $3

million was more than all other donations to the campaign combined, and Benjamin went on to

win the election and subsequently hear the case. He refused to recuse himself, and the West

Virginia Supreme Court reversed the jury’s verdict by a 3-2 vote.

Although the Supreme Court of the United States ruled that the justice’s refusal to

recuse himself violated due process, the case shows the dangers that elections, especially in

today’s world after Citizens United.7 A study of Supreme Court cases in Louisiana, where judges

are elected produced these staggering results:

This is not to say, however, that supporters of judicial elections have not come up with

ideas to reform elections that would get rid of such concerns. For example, it has been

7
Citizens United v. Federal Elections Commission, 552 U.S. 1240 (2008) held unconstitutional many provisions of
the Bipartisan Campaign Reform Act.
suggested8 that judicial elections could be fair if there were instituted public financing of such

elections, strengthening of recusal rules, and caps on contributions and expenditures.

Criminal Cases

Another possible area of difficulty with elected judges is criminal cases. While we are

past the days of lynchings and mob-dominated trials, statistical evidence shows that judges

change their sentencing patterns near election time. A study of Washington state judges

revealed that sentences increase in length by 10% near the end of an electoral cycle and

increases over the sentencing guidelines rise by more than 50%.9 While dispassionate and

impartial judges sit over hundreds of criminal cases, knowing the rules, sentences, and reasons

behind them from years of experience, inflamed and agitated voters and victims often cry for

blood, not knowing the reasons for the intricacies of our legal system.

Perhaps a telling example would be capital trials. Judges in conservative states with

significant support for capital punishment will often impose death more often to get votes.

Alabama is probably the best example. Alabama has a judicial override system, which means

that while the jury chooses between a life sentence and a death sentence, the judge can

override the jury’s decision and impose the other. A Mobile Register poll concluded that 63% of

Alabamans support the death penalty,10 and judges seemed to have responded: In 2008, 30%

8
Michael DeBow, et. al. The Case for Partisan Judicial Elections. The Federalist Society. January 1, 2003. Accessed
April 12, 2012. <http://www.fed-soc.org/publications/detail/the-case-for-partisan-judicial-elections>.
9
Berdejó, Carlos, and Yuchtman, Noam. Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal
Sentencing. Berkley. 2003. Accessed April 12, 2012.
<http://faculty.haas.berkeley.edu/yuchtman/Noam_Yuchtman_files/Berdejo_Yuchtman_Sept_Complete_plus_ap
p.pdf>
10
Recent Poll Results from around the Country. New Jerseyans for Alternatives to the Death Penalty. Accessed
April 12, 2012. <http://www.njadp.org/forms/guessagain.html>
of Alabama death sentences were imposed by judicial override, while in Delaware, which also

has judicial override, nobody is on death row as a result of override.11 Furthermore, 92% of all

judicial overrides were from life to death, with 8% vice versa.12 Even more telling of the

political nature of the capital sentencing is the fact that as opposed to the 30% of death

sentences opposed by override in 2008, only 7% of death sentences were so imposed in 1997, a

non-election year.13

Protecting the Minority from the Majority

The government of the United States is based on majority rule, but neither 51% of

Congress nor 51% of a state legislature can pass a law taking away the right to a jury trial for

Democrats or putting a tax on people who print stories critical of the President. It was Lord

Acton who recognized the necessity of constitutional restraints when he said, “The one

pervading evil of democracy is the tyranny of the majority.”14 Would the election of judges

compromise the balance of majority rule and minority rights? Would judges who ruled in favor

of unpopular parties be destined to lose reelection?

To see how this idea would play out with judicial elections, it might be interesting to see

if the Justices of the Supreme Court of the United States would win a hypothetical reelection

after the decisions in Synder v. Phelps15 or Texas v. Johnson.16 In Snyder, the Westboro Baptist

11
New EJI Report Finds Arbitrary, Biased, and Unreliable Death Sentencing when Alabama Judges Overridge Jury
Verdicts of Life. Equal Justice Initiative. 2011. Accessed April 12, 2012. <http://www.eji.org/eji/node/541>.
12
Ibid.
13
Ibid.
14
Lord Acton. The History of Freedom and Other Essays, Section III: Sir Erskine May's Democracy in Europe.
London: Macmillan, 1907. p. 76.
15
Synder v. Phelps, 131 S.Ct. 1207 (2011).
16
Texas v. Johnson, 491 U.S. 397 (1989).
Church picketed outside the funeral of Matthew Snyder, an Marine who died in the line of duty

in Iraq, with signs reading, “Semper Fi Fags, “God Hates Fags,” “Thank God for Dead Soldiers,”

and “You’re Going to Hell,” to demonstrate that 9/11 and dead troops are God’s punishment

for America’s tolerance of homosexuality in the military. The Supreme Court reversed a $10

million verdict, upheld the free speech rights of the church, and ordered Snyder’s family to pay

over $15,000 in attorney’s fees to the Phelps.17 The public was so outraged, Michael Walsh of

the National Review observed in March of 2011,

“My New York Post column yesterday defending it got a mere 14 “likes” (down by hundreds, even

thousands, from the norm), while on the radio I got exactly zero love from the callers for my absolutist

stance on the First Amendment. The sentiment was strongly: “They try this at any funeral I attend and

watch what happens to them.”

In Texas v. Johnson, the Supreme Court upheld another popular privilege with strong

public support: burning American flags. The public was so outraged that not only did Congress

pass the Flag Desecration Act, which was struck down the year after,18 they tried five times in a

row (between the 104th and 109th Congresses) to pass a constitutional amendment banning flag

desecration. The House of Representatives passed the amendment each of the five times, but

it failed in the Senate. Public polls in 1990, the year after Johnson, revealed that 71% of

Americans wanted such a constitutional amendment.19 Supreme Court Justices are appointed

17
O’Reilly, Bill. “Hating America.” Fox News. 2010. Accessed April 12, 2012.
<http://www.foxnews.com/story/0,2933,590202,00.html> Bill O’Reilly agreed to pay the court costs for the Snyder
family.
18
United States v. Eichman, 496 U.S. 310 (1990)
19
Caroll, Joseph. Gallup News Service. Public Support for Constitutional Amendment on Flag Burning. 2006.
Accessed April 13, 2012. <http://www.gallup.com/poll/23524/public-support-constitutional-amendment-flag-
burning.aspx>
for life terms and never have to worry about being reelected, but could and would elected state

judges make rulings like these and stand a chance?

Conclusions

The aforementioned research was conducted to see whether or not elected judges were

less impartial, more susceptible to the public will, and more prone to political corruption. The

research suggests that all of these theories have strong validity. From Alabama capital

punishment to corrupt West Virginia justices, to highly impressionable Louisiana judges, it is

undeniable that elected judges act in a different manner than appointed or selected judges.

Whether or not electing judges is a good idea, compared to appointed judges, especially federal

judges with life tenure, it most certainly not only makes judges more accountable to the will of

the people, but causes them to be less independent and impartial. It is debatable whether or

not the United States should be more directly democratic, but if it wishes to be, electing judges

surely furthers that goal.