University of Denver

2020 Judicial Elections Bring Less Tumult, But Still a Few Surprises

Professor of Law, New England Law | Boston

On the whole, 2020 was a quiet time for state judicial elections, at least in comparison to recent years. Fewer sitting judges were directly targeted for removal, and most of the efforts to oust judges failed at the ballot box. But even quiet years have standout moments, and the recent election cycle brought several noteworthy developments.

In Illinois, after a multi-million dollar campaign waged by both sides, Thomas Kilbride became the first state supreme court justice to lose a retention election. Justice Kilbride was actually supported by about 57 percent of the electorate, but under the state’s unique rules, a sitting judge must garner at least 60 percent of the retention vote to remain on the bench. The state supreme court quickly appointed Judge Robert Carter, a 40-year veteran of the trial court, to fill Kilbride’s seat. Judge Carter has stated that he will not seek retention in 2022, setting the stage for a full-fledged election campaign in two years.

Justice Kilbride’s loss will likely reopen the conversation about the propriety of the state’s 60 percent retention threshold. No state has as onerous a requirement for judicial retention (and only one other, New Mexico, requires more than a bare majority). In recent years, some Illinois trial judges have successfully circumvented the 60 percent requirement by resigning from the bench before the election and then running for their same seats; even if the race was contested, a judge would only need to get a simple majority of votes to return to the bench. An effort to close this loophole through legislation never made it to a floor vote, but the prominence of the Kilbride election may spur another effort to clarify—or at least reconcile—the different standards.

In North Carolina, a recent return to partisan judicial elections set the stage for a tightly contested race for chief justice of the state supreme court. North Carolina was once the vanguard of nonpartisan judicial elections, with a prominent public funding component and a robust, state bar-sponsored judicial performance evaluation (JPE) program. But the state legislature voted in 2017 to return to partisan judicial races (overriding a veto by Governor Roy Cooper), and internal politics at the state bar shuttered the JPE program.

In the wake of these changes, Associate Justice Paul Newby, a Republican, challenged sitting Chief Justice Cheri Beasley, a Democrat, for the state’s top judicial seat. After more than 5.4 million ballots were counted, Justice Newby led the race by a margin of only 406 votes. As of this writing, all ballots were undergoing a statewide recount. Whatever the outcome of the election, the reversion to a partisan selection method increases the likelihood that the court’s work will be viewed through the lens of politics.

Several other states also felt a partisan influence on judicial elections, often in surprising ways. In Arizona, the Maricopa County Democratic Party openly campaigned against the retention of two state trial judges, even though both were found to have met the state’s performance standards. The chairman of the Maricopa County Democrats explained that the group “works to highlight candidates it believes will advance the party’s policies.” Notwithstanding the campaign, the judges were in fact retained.

In Texas, where judicial elections are officially partisan, Democratic candidates swept the judicial races in the state’s two largest urban centers, Dallas County and Harris County. And in Maryland, three recently appointed trial judges—all of whom had been vetted and recommended by local nominating commissions and appointed by Republican governor Larry Hogan—lost to challengers as they ran for reelection. The ouster of three incumbent judges in a single year—dubbed a “rarity” by one news outlet—has given new life to calls for eliminating contested elections for the state circuit courts.