Academic journal article Political Research Quarterly

Attack Advertising, the White Decision, and Voter Participation in State Supreme Court Elections

Academic journal article Political Research Quarterly

Attack Advertising, the White Decision, and Voter Participation in State Supreme Court Elections

Article excerpt


This project evaluates whether televised attack advertising and less restrictive campaign speech codes brought about by Republican Party of Minnesota v. White (2002) have had adverse effects on citizen participation in state supreme court elections. The authors' specific focus is on partisan and nonpartisan races from 2002 through 2006. Overall, they find that attack ads and liberalized speech codes actually mobilize rather than demobilize the electorate. These findings highlight the striking similarities between supreme court elections and elections to other important offices. These results also raise questions about the validity of normative accounts of the relationship between citizens and the bench.


state supreme courts, judicial elections, political campaigns, negative advertising

In recent decades, the skyrocketing costs of seeking political office and the negativity that can be a part of aggressive, well-financed campaigns have been a central focus in political science. Particularly relevant is the potentially deleterious effects of attack advertising and the concern that nasty campaigns filled with personal attacks may have the capacity to demobilize citizens, thereby threatening the foundations of representative democracy.

In the context of judicial elections, these concerns have been exacerbated by the U.S. Supreme Court's decision in Republican Party of Minnesota v. White (2002). In White, the Supreme Court invalidated "announce clauses" in codes of judicial conduct, which prohibited candidates for judgeships in some states from announcing their views on issues. As Caufield (2007, 35) explains, announce clauses and other provisions in codes of judicial conduct "were designed specifically to limit campaign speech in an effort to preserve the unique character of the judicial branch and to promote the impartiality of state court judges." In other words, announce clauses forced candidates to run issuefree campaigns. In this regard, judicial campaigns in some states have been markedly different from legislative and executive campaigns.

Times definitely have changed. White not only invalidated announce clauses but also opened the door to subsequent litigation successfully challenging other restrictions on judicial candidates at the same time that some states voluntarily began to revise their codes in response to the White decision (e.g., Caufield 2007; Hasen 2007). While judicial elections in states using partisan elections to staff their benches always have been "political" in tone, those states using nonpartisan elections and restrictive judicial codes now are experiencing open public debate for the first time, including negative messages targeting individual judges and their decisions.

In this article, we rely on the strong theoretical foundations of the judicial politics and American elections literatures and the analytical advantages of comparative state research designs to examine the impact of campaign politics on voter participation in elections to the states' highest courts. Specifically, we assess the effects of televised attack advertising and liberalized speech codes brought about by White on citizen mobilization in state supreme court elections from 2002 through 2006. We seek to answer one vitally important question: do attack ads and broader interpretations of White reduce the propensity to vote.

In doing so, we test two competing theoretical predictions about the relationship between campaigning and voting in judicial elections. The first perspective, drawn from normative legal theory and work by Ansolabehere et al. (1994; Ansolabehere and Iyengar 1995) on nonjudicial elections, predicts that electioneering and other campaign activities intensified by White will undermine citizens' positive perceptions of courts, leading to a diminution of trust and confidence and consequent voter demobilization. The alternative conceptualization points instead to the vital importance of information and campaign spending in mobilizing citizens to vote and thus predicts a positive (or at worst neutral) effect of aggressive campaign politics on voter participation. …

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