Judicial Retention Election Trends 1964-2006

Article excerpt

The Judicial Retention Project database1 now contains results from 1964, when several states first adopted the merit-retention system, to 2006. Through the years the project has published several detailed analyses of retention election issues and then summarized and updated some of the findings in a series of reports.2 This article provides a further update and reports developments on four elements of widespread interest: the affirmative vote, defeated judges, voter differentiation, and rolloff.

Affirmative vote

Both Figure 1 and Table 1 report the variability in the national mean affirmative vote across time. The national average dropped 9 points from 1968 to 1974 whereupon it remained relatively stable, if not drifting slightly upward, until 1990. Then the affirmative vote suffered a 7-point drop in a single election cycle, declining from 76.7 percent in 1988 to 69.4 percent in 1990. The average climbed back to the 75 percent level where it remained almost constant from 1998 to 2004 before decreasing slightly in 2006.

As seen in Figure 1, the affirmative vote is strongly related to political trust. The correlation coefficient between the trust index and affirmative vote is .82 for the years 1964 through 2004.' The trust index is more sensitive to trust in national institutions/officials than to trust in state and local officials and this may explain an interesting disconnect evident in Figure 1. By the 2000 election both the trust index and the affirmative vote had returned to their mid-1980s highs. Then, after 9/11, the trust index spiked upward 10 points for a single election cycle.4 This momentary surge in trust did not benefit judges; the affirmative vote remained constant in the 2000, 2002, and 2004 elections.

In addition to the yearly variation, the affirmative vote continues to vary from state to state and from district to district within states. This variation is yet to be completely explained and the inter-state differences are reported in Table 1. While the Missouri and Wyoming affirmative vote means are about 10 points apart in 2006, respectively 68.8 percent and 78.5 percent, all state means are well above the thresholds required for retention. Thus, any decline in the overall affirmative vote (e.g., that stemming from some sudden drop in political trust) is unlikely to sweep judges from office. Even when specific judges are targeted for removal by voters, a traditionally high affirmative vote in the district provides a cushion to survive dissatisfied voters.5 Retention voters, however, can overcome this cushion. Wyoming has one of the highest average affirmative votes, 75.9 percent, yet it also has the highest percentage of elections where judges have been defeated, 3.9 percent.6

Defeated judges

In only 56 of the 6,306 judicial retention elections were judges not retained. The type of court is of no relevance to being defeated, but the required threshold remains important. Of the 6,306 elections 86.7 percent were major trial court elections and, similarly, 91.1 percent of the defeated judges were major trial court judges. In contrast, while 31.3 percent of the elections were in Illinois, which alone among the 10 states requires a 60 percent affirmative vote for retention, 51.8 percent of the defeated judges were in Illinois. Interestingly, of the 29 defeated judges in Illinois only 1 had an affirmative vote below 50 percent.

As seen in Table 2, after the 1990 peak when 10 Illinois judges were defeated, there has been a steady decline in the number of defeated judges.7 In the last five election cycles only four judges have not been retained. While the recent low frequency of defeated judges coincides with a consistently high national affirmative retention vote, there is little relationship between them. The most significant factors in a typical retention election are very different than those in elections where judges are not retained. In the typical retention election, non-judge specific factors (e. …