University of Denver

Some State Judicial Elections May Take a Populist Turn in 2020

Professor of Law, New England Law | Boston

Judicial elections in Ohio and Pennsylvania are poised to become more populist in the near future, if bills pending in both states clear their respective legislatures.

In Ohio, state judges are currently chosen in nonpartisan general elections (although they do compete in partisan primaries). But House Bill 460 would allow judicial candidates to place their party affiliations directly on the general election ballot. If the measure becomes law, Ohio would be the second state in recent years to move from nonpartisan to openly partisan elections. North Carolina’s legislature made the switch, over the objection of the state’s governor, in 2017.

Pennsylvania already selects its judges through partisan races. But a bill that cleared that state’s House of Representatives in December would additionally require that judges on the state supreme, superior, and commonwealth courts be elected by region. House Bill 196 would divide the state into seven geographic districts to be set by the legislature, with equal numbers of judges being elected from each district. It would also put Pennsylvania in limited company: only Illinois and Louisiana currently hold regional, partisan elections for their highest courts. The bill’s sponsor, state representative Russ Diamond, said that he expects the state senate to vote on the measure this spring.

Proponents of the Ohio and Pennsylvania bills have justified their respective proposals on the grounds that their current methods of selecting judges are flawed in practice. The Ohio bill, for example, responds to a 2014 survey showing that half of Ohio voters vote less frequently in judicial elections than they do in other races, and that 65 percent of those surveyed felt that knowing candidates’ party affiliations would aid them in making their decisions. Similarly, the author of the Pennsylvania bill has promoted geographic districts as a way of creating more regional diversity on courts which, in his view, have been “utterly dominated” by residents of the Pittsburgh and Philadelphia metro areas.

While these concerns may be valid, the proposed solutions are unlikely to improve matters. If anything, they will exacerbate the deep flaws already attendant to all judicial elections. Ohio voters may want more information in order to choose high-quality judges, but party affiliation is unlikely to help. Indeed party affiliation has proven to be such a poor signal of candidate quality that Texas recently eliminated straight-ticket voting altogether. And in Pennsylvania, geographic representation could be achieved much more fairly and efficiently through a commission-based appointment system than through the messy (and litigation-begging) process of drawing election districts in the legislature. No wonder five former Pennsylvania governors, representing both political parties, called for the state to move to merit selection for all of its judges in 2017.

In the end, it is hard to see how either piece of proposed legislation will improve the quality of the judiciary. Affixing a partisan or geographic label to judicial candidates sends the message that judges owe their allegiance to a narrow constituency rather than to the general public or the rule of law. It encourages more money and more negative advertising to flow into judicial elections. And it invites members of the public to see judges as partisans, weakening the courts’ overall legitimacy. Worst of all, over time it might incline judges themselves to take actions aimed at pleasing their core electoral constituencies, to the detriment of the general public.