UNCONTESTED and UNACCOUNTABLE? RATES of CONTESTATION in TRIAL COURT ELECTIONS
Nelson, Michael J., Judicature
Although electoral competition is an important indicator of the ability of judicial elections to promote judicial accountability, a study of trial court elections in 29 states found that over three-quarters of elections fail to provide voters the opportunity to make a choice in the voting booth.
The empirical literature onjudicial accountability has focused almost exclusively on appellate courts.1 While state appellate courts play a crucial role reviewing trial court decisions, setting precedent, and interpreting law, their ranks represent less than 5 percent of the number of autho rized judgeships.2 Though they typically do not make precedent and are ostensibly bound by the ridings of higher courts, trial court judges exercise immense discretion.3 Decisions made by appellate judges have important effects on citizens, but trial courts are typically citizens' first, and often only, direct interaction with the judicial branch. Trial court judges determine the amounts of child or spousal support that must be paid in a divorce settlement and who must pay it, set bail when a suspect is arraigned, and, in many instances, determine the length and type of sentence for a convicted defendant.
Moreover, judicial selection reform efforts in recent years have targeted trial courts. The November 2008 ballot contained attempts to change methods of judicial selection on the general jurisdiction trial courts in counties in Kansas and Missouri.4 In 2009, the governor of Indiana vetoed legislation that would have changed the selection method for the St. Joseph County Superior Court from merit selection to contestable elections.5 In the 2010 general election, a Change in the state's judicial selection system for both trial and appellate court judges was rejected by Nevada voters.6 The sheer number of trial court judges, die important role diese individuals play in citizens' interactions with the judiciary, and recent efforts to change trial court selection mechanisms make it imperative to build an improved understanding of judicial selection and retention mechanisms at the trial court level.
This study examines general and primary electoral contests in the 29 states that used contestable elections to select and retain judges for general jurisdiction trial courts in 2000, 2002, 2004, 2006, and 2008.7 The dataset includes 10,890 trial court elections. After exploring various conceptions of judicial accountability, it assesses the ability of general jurisdiction trial court elections to promote the type of accountability often touted by proponents of contes table judicial elections.
Additionally, this article provides the first comprehensive examination of trial court elections to acknowledge the effects of electoral rules on the measurement of contestation rates. The results indicate that over 75 percent of contestable judicial elections used to fill seats on general jurisdiction trial courts are uncontested. These results call into question arguments made by proponents of judicial elections and suggest that future research should explore the similarities and differences between trial and appellate court elections.
Parsing judicial accountability
Much of the judicial selection discourse has been framed as a debate over the definition of judicial accountability. As one prominent reform advocate has written, "ITJf courts and tiiose who care about them can learn to make accountability their friend and define judicial accountability properly before the other side corrupts it, they'll go a long way toward turning back the onslaught of attacks on the independence and impartiality of our courts."8 As this statement suggests, court commentators generally agree that some form of judicial accountability is desirable, but they disagree about which definitions of accountability are "proper" and which are "corrupt." As a result, judicial accountability has become, in the words of retired Supreme Court Justice Sandra Day O'Connor, "misunderstood at best and abused at worst. …