The 2010 JUDICIAL RETENTION ELECTIONS in PERSPECTIVE: Continuity and Change from 1964 to 2010
Aspin, Larry, Judicature
Although retention elections moved into the media spotlight in 2010, retention patterns changed little-voters retained almost all judges
Led by the expensive and intense opposition campaigns in Iowa and Illinois, the 2010 judicial retention elections moved into the media spotlight usually reserved for the partisan elections at the top of the ballot. While the amount of media attention was atypical, were the 2010 elections different than past retention elections? Did 2010 mark a turning point in retention election trends?
To provide an empirical base for answering such questions the 2010 elections are examined within the context of the trends that have been captured by the Judicial Retention Project (JRP). The comprehensive JRP database1 contains 8,556 judicial retention elections from 1964, when several states first adopted the merit-retention system, through 2010. The database has been recently expanded so that it now contains all rétention elections for the major trial, appellate, and supreme courts of all 18 states that hold retention elections in even numbered years.2 The analysis here will examine the 2010 retention elections in all 18 states; however, to facilitate comparison with previous reports, specific trend figures and statistics are for the 7,689 elections in the 12 states employing retention elections from the supreme court to the major trial court level.3 Any known trend differences for the other six states that employ retention elections for only appellate and supreme courts will be noted.
With regard to inter-state and inter-district variability in the affirmative retention vote, the 2010 elections repeated past patterns. Tables 1 and 2 report the average affirmative vote by state for the last seven election cycles. The 2010 average affirmative vote ranges from the lows in Alaska (63.4 percent), Iowa (63.4 percent), Oklahoma (63.5 percent), and Florida (64.7 percent) to the highs in Maryland (85.4 percent), Utah (77.3 percent), and Illinois (75.8 percent). An example of the continued interdistrict variability is seen in Table 4 where the affirmative vote for Iowa district court judges ranged from 58.1 percent in the 4th district to 70.7 percent in the 6th district.
While the 2010 mean affirmative vote is still well above the retention thresholds, the average affirmative vote moved closer to these thresholds. As seen in Figure 1 and Table 1 the national average vote barely moved from 1998 to 2008, then it dropped from 75.0 percent in 2008 to 69.5 percent in 2010. Not only is this 5.5 percentage point decline the largest since 1990, but also the 69.5 percent average ties the 1990 average as the lowest average affirmative vote in the 1964 to 2010 time period.
As in 1990, the 2010 average affirmative retention vote declined in almost all states, but there was significant interstate variation. As reported in Tables 1 and 2, there were declines from 2008 to 2010 of more than 5 percentage points in Arizona, Colorado, Iowa, New Mexico, Florida, and Tennessee. While most states saw some decline at least two saw very little - Nebraska and Maryland. Upon closer examination, there appear to be two patterns: a small general reduction in the affirmative vote across all states and an ever larger reduction in most of the states where there were opposition campaigns.
Examining the change in average affirmative vote from 2008 to 2010 for each state reveals that three states had a change of less than 2 points, seven declined between 2 and 4 points, and six declined over 5 points. The average change for the states where change can be calculated is -4.3 percentage points. This pattern remains unchanged when all judges who were either the targets of opposition campaigns or received do not retain recommendations from judicial performance commissions are excluded from the analysis. Furthermore, the pattern continues to hold if all judges who were on the same ballot as the targeted judges are also excluded from the analysis. …