Sunday, February 27, 2011

Should NC return to partisan judicial elections?

In the February 26 edition, the Salisbury Post gave a “dart” to NC House Bill 64 (Senate Bill 47) and co-sponsored by Rowan County’s state senator Andrew Brock (R-Davie), to return judicial elections in North Carolina to a partisan election, rather than the current non-partisan election system. In the study of judicial politics, it might be helpful to know what researchers have found when judges are subjected to the “will of the people,” both in terms of partisan and non-partisan elections.

Twenty-two states use elections to select judges, with a majority of those states utilizing non-partisan elections—North Carolina being one of them. Surrounding the idea of judicial elections are contending values: making the third branch of government responsive and accountable to the people, while ensuring the idea of fairness and impartiality in the administration of justice.

In an analysis of judicial elections across the states, two political scientists (Bonneau and Hall) explored the arguments and “myths” of judicial elections, one of which is that nonpartisan elections “depoliticize” campaigns and decrease the amount spent on judicial elections. In fact, the researchers found that nonpartisan judicial elections increase the costs of campaigns, whereas partisan elections decreased the costs of elections.

In defending judicial elections, the scholars noted that partisan elections reduce the cost of gathering information for voters, and the researchers found that partisan elections “provide a relatively rational basis upon which to select” judicial candidates by voters.

Some argue that money may buy justice, and in West Virginia, money did appear to buy recently a seat on that state’s supreme court and influence a major decision there—which the U.S. Supreme Court struck down subsequently. According to the Council of State Governments, each state Supreme Court candidate in 2000 across the nation raised, on average, over $430,000, with sixteen candidates raising more than $1 million each. But Bonneau and Hall found that money is “a necessary condition for educating and mobilizing voters” and judicial elections are no different than legislaive and executive contests.

Some argue that “politics and the bench don’t mix,” that justice shouldn’t be beholden to the party affiliation of the judge and those appearing before the court. In a host of other studies which examined the argument that nonpartisan elections improve the quality of the bench, researchers have found that partisan elections do not necessarily produce less qualified judges.

Before 2004 in North Carolina, judicial officers had their partisan affiliation listed on the general election ballots. One facet that judicial politics scholars investigate is the decrease in the votes cast down the ballot compared to the top-line office on the ballot (otherwise known as “run-off”).

In four elections that were partisan (1996, 1998, 2000, and 2002), the run-off from the top of the ballot (U.S. president, U.S. Senate, or the combined U.S. House races) in those years would range from 2.83 percent for the chief justice to 8.68 percent for the court of appeals judges.

After non-partisan elections were introduced with the 2004 election in North Carolina, the run-off percentages dramatically worsened. In the 2004 election, the NC Supreme Court associate justices contests saw a run-off of 23 and 26 percent, with the court of appeals justices 27 percent off the presidential votes cast.

In 2008, in a highly competitive election and with an astounding 70 percent registered voters showing up to the polls, there was anywhere from 31 percent to 44 percent run-off for the court of appeals judges. Just last year, the decrease in votes cast for the lone court of appeals judgeship, which featured the first state-wide instant run-off system, was nearly 27 percent from the U.S. Senate race between Burr and Marshall.

While those who advocate non-partisan judicial elections argue that the electorate is better served, the electorate may think otherwise. Some contend that partisan affiliation serves as a critical “cue” to voters, along with the fact that those voters who wish to cast a “straight-ticket” ballot don’t impact the judicial elections.

The third branch of government is a critical policymaker in many regards—most recently, North Carolina education policy has been greatly impacted by a lone judge in the Leandro case. While politics may never be fully removed from those who wear the black robe, the system of judicial elections—whether partisan or non-partisan—is still in the hands of a Tar Heel electorate who seems, in recent non-partisan judicial elections at least, to not really care about these important offices of our state government.