Many judicial retention ballots landed in the trash can rather than the ballot box in Pottawatomie County.
This is just one sign of voter frustration among voters who knew little or nothing about the eight appellate court judges who won approval in the Nov. 8 election, said secretaries of local election boards.
Oklahoma Supreme Court Justice Marian Opala, who passed the voters test to serve another six years, said he suspected a "large majority of voters for the retention ballot were totally uniformed."
"Getting information to the voters is a real problem in all judicial elections," said Kate Sampson, spokeswoman for the American Judicature Society in Chicago, an independent, non-profit organization which works to improve the courts.
In 1934, California took the lead in adopting retention elections as part of its gubernatorial selection of appellate court judges, followed by Missouri in 1940, which adopted it as part of its merit selection process, which uses a judical committee to appoint judges.
Retention elections were first created as a non-partisan way to combine the system of electing judges by popular vote, such as in Illinois, and the appointive system, such as in Oklahoma, where a committee appoints judges.
"Retention elections were first intended to make it hard to remove qualified judges and to protect their independence by insulating them from the whims of voters who might react to a particular decision," Sampson said. By using retention elections, states sought to give voters the opportunity to periodically evaluate a judge while preserving separation between the judicial branch and the legislature.
At present, voters in 16 states, including Oklahoma, re-elect appellate judges with retention ballots. All but three of those states use the merit selection system where a judicial nominating commmittee selects the judges.
Oklahoma first adopted the retention ballot for re-electing Supreme Court and Court of Appeals judges in 1967 when the constitution was amended to create a merit selection system for choosing judges which came in response to the 1964 Supreme Court scandal, said Marvin Emerson, director of the 12,000-member Oklahoma Bar Association. In the scandal, Oklahoma Supreme Court Justices Earl Welch and N.S. Corn were convicted for income tax evasion. Both were implicated with Oklahoma Supreme Court Justice N.B. Johnson who was impeached after being convicted of federal bribery charges.
To create an effective system, 21 state and 77 local bar associations presently conduct bar polls to educate their voters on judicial candidates prior to an election. About 12 percent provide data to judicial commissions, according to a 1982 bar poll survey conducted by Professor Kenyon Griffin of the University of Wyoming.
Despite voter unawareness of judicial candidates, the Oklahoma Bar Association, a mandatory non-profit association, has chosen not to conduct bar polls.
"There has been discussion about judicial evaluation polls, but we could legally jeopardize our tax exempt status by conducting a political campaign by bar polling," Emerson said.
When asked who should educate the voters, he replied, "the power of the press."
The State Bar of Arizona, also a non-profit mandatory bar, has avoided participation in political activity by sponsoring pre-election bar polls through Arizona State University Survey Research Laboratory in Tempe, Arizona. "We have had tremendous response this year," said Jenny Fink, public relations coordinator for the State Bar of Arizona.
"Last week we received 20 phone calls a day from voters requesting information on judicial candidates. The poll is really the only concrete way for voters to make informed decisions about judges."
The Lab, which began polling for the state bar in 1976, conducts a survey of one fourth or 2,600 of its 10,400 members who are instructed to rate trial judges before whom they have practiced or higher judges whose decisions they know first-hand. …