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
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
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
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
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. …