In retention elections, voters have their say about judges. We do not recommend that elections be contested and partisan, but we endorse the opportunity for citizens to make their choice. The compromise is a retention election in which the judges are "retained" in office or not on the basis of the vote of the electorate.
Citizens are asked to vote “yes” or “no” to keep a judge on the bench, based on his or her performance in the most recent term. Retention elections occur at regular intervals when a judge’s term is about to expire. Judicial performance evaluation (JPE) plays a crucial role in providing voters with objective and broad-based information about the judge’s performance—information that is often lacking in judicial elections, especially when they are highly politicized. While JPE has purpose in self-improvement and feedback to individual judges, its primary purpose is to allow voters to cast informed votes when the judges appear on their ballots. Judges removed by the voters are replaced by candidates who have been reviewed and recommended by the judicial nominating commission and appointed by the governor.
Because judges do not face opponents in retention elections, they usually do not need to raise money and conduct campaigns. At the same time, special interest groups are not as active in retention elections as they are in contested elections because a good judge’s performance speaks for itself. Although special interest groups can spend money to oust a judge they do not like, they cannot select a replacement who fits their particular agenda because the judicial nominating commission is tasked with selecting nominees to fill vacancies.
Guidelines for Effective Gubernatorial Appointment
We recommend these elements of the retention election process as better practices:
- Retention elections are the final, critical piece of a selection system that embraces the core judicial values listed above. Accountability of judges to the public is the pivotal part of this approach to judicial selection.
- Judges do not run against opponents; they do not run on party lines; they do not (except in extraordinary circumstances) need to raise money or make stump speeches that may affect their impartiality or the appearance of impartiality.
- However, they do need to stand for election before the public whom they serve.
- That voter base must have ready access to the JPE information that allows each voter to cast an informed vote about the judge—based upon his or her actual performance on the bench.
- In retention elections, judges stand for retention after a provisional term of two to three years. This allows for the collection of sufficient data about the judge’s performance.
- Judges’ terms of office vary after that, so JPE data collection should be continuing and as frequent as possible to coincide with the judge’s respective term.
States with Retention Elections
In a retention election, judges run unopposed. Voters are asked whether the judge should be retained in office, and in most states, a simple majority vote is required for retention. In 14 such states, judges stand in retention elections for subsequent terms.
In three states where judges are initially chosen in partisan elections, judges stand in retention elections for subsequent terms.
In California, where the governor appoints all appellate court judges, and in Kansas, where the governor appoints intermediate appellate court judges, judges stand in retention elections for subsequent terms.
In Montana, if a judge seeking reelection is unopposed, s/he stands in a retention election instead.