University of Denver

Post-Election Selection Snapshots: An Overview of the 2012 Campaigns and Elections that Affected Courts and Judges

Former Manager, Quality Judges Initiative

This special edition of Selection Snapshots provides an overview of the challenges to judicial retention, court-related ballot measures, supreme court elections, public financing of judicial campaigns, and judicial campaign oversight committees.

Challenges to Judicial Retention

Supreme court justices retained their seats in the face of challenges in five states. Aided by $5.5 million—$1.5 million of which was raised by the justices themselves—three Florida justices kept their positions by 2-1 margins. Iowa justice David Wiggins withstood opposition based on his participation in a 2009 decision legalizing same-sex marriage and garnered 54% “yes” votes. Approximately $800,000 was spent by groups on both sides. In Oklahoma, attorneys and others who supported the retention of the four justices on the ballot spent $400,000 on ads to counter the justices’ unfavorable ratings in a state chamber evaluation. Arizona justice John Pelander and Indiana justice Steven David both resisted late campaigns by conservative groups who were unhappy with recent decisions in which the justices had participated.

Court-Related Ballot Measures

Court-related ballot measures failed in four states. In Arizona and Missouri, voters rejected proposed constitutional amendments that, among other things, would have expanded governors’ authority to appoint members of judicial nominating commissions and given governors more names from which to choose in making judicial appointments. Florida voters turned down a measure that would have required senate confirmation of supreme court appointments and made it easier for the legislature to invalidate supreme court rules. In New Hampshire, voters said “no” to a proposal that would have given the legislature concurrent authority with the supreme court in making rules for the administration of the state court system.

New Jersey voters overwhelmingly approved a ballot measure that will allow the legislature to require judges to contribute more toward their pensions and health benefits. The supreme court had ruled that the constitution protected judges from having their salaries reduced.

Supreme Court Elections

Former chief justice Roy Moore, who was removed from the supreme court in 2003, defeated a sitting circuit court judge to return to Alabama’s high court, while two incumbent justices in Ohio lost their bids for reelection. Three Nevada justices were reelected without opposition.

Conservatives maintained their majorities on two high courts in the November 6 elections. In a Michigan race that saw at least $10 million in TV ad spending by political parties, Republican-nominated candidates won two of three seats and maintained their 4-3 balance. In North Carolina, incumbent justice Paul Newby benefited from $2.5 million in independent expenditures and defeated a sitting court of appeals judge, preserving a 4-3 conservative majority on the supreme court.

Public Financing of Judicial Campaigns

Public financing programs were in place for appellate court candidates in three states. All eight appellate court candidates in North Carolina accepted public financing, while outside groups spent approximately $3 million in a single supreme court race. Because of a gap in New Mexico law, candidates for a supreme court seat were unable to receive public funding, since the vacancy did not occur until after the primary election. By the first week in November, the candidates had raised $161,000. West Virginia offered a pilot public financing program for supreme court of appeals elections, but only one of four candidates opted to participate. Following a court ruling that invalidated the program’s matching funds provision, that candidate was allowed to exit the program. With two weeks to go before the election, the four candidates had spent $3.5 million.

Judicial Campaign Oversight Committees

Campaign oversight committees were active in at least three states during this election cycle. The Ohio State Bar Association’s Judicial Election Campaign Advertising Monitoring Committee asked a supreme court candidate to remove materials from his website suggesting that “justice is for sale in Ohio.” The Ohio committee also asked the state Republican Party to stop airing an ad accusing a supreme court candidate of being sympathetic to rapists. The Kentucky Judicial Campaign Conduct Committee labeled ads by two high court candidates as misleading and described one ad as appearing “to be designed to appeal to racial prejudice.” The Louisiana Judicial Campaign Oversight Committee ruled that a city court candidate’s ad violated an ethical prohibition against endorsing candidates for public office.