JUDICIAL SELECTION IN WASHINGTON: WHERE HAVE WE BEEN AND WHERE SHOULD WE GO?

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JUDICIAL SELECTION IN WASHINGTON WHERE HAVE WE
BEEN AND WHERE SHOULD WE GO? David C. Brody,
J.D., Ph.D. Associate Professor Washington State
University Spokane Nicholas P. Lovrich,
Ph.D. C.O. and Mary W. Johnson Distinguished
Professor Director, Division of Governmental
Studies Services Washington State University  
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WHY ELECT JUDGES?

• All power residing originally in the people and
  being derived from them, the officers of the
  government, including the judiciary are their
  substitutes and agents and are at all times
  accountable to them.
• Article V, 1780 Massachusetts Constitution

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Goals of Judicial Elections

• Give people the power to select their judges
• Limit power of governor/appointing authority
• Preserve independence from other branches of
  government
• Check on judicial abuse of power
• Have the best people possible serve as judges
• Elections educate the public on the importance of
  judicial independence in the context of popular
  election

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Assumptions Underlying a Judicial Election System

• Judges will reach the bench via election
• Incumbent judges will be accountable to voters
• Voters will have sufficient information upon
  which make an intelligent electoral decision

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AXIOM OF 80

• 80 of people dont vote in judicial elections
• 80 unable to identify candidates
• 80 believe elected judges influenced by campaign
  contributions
• 80 of elections uncontested
• 80 of public wants judges to be elected
• Source Maute (2000), South Texas Law Review

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Five Items to be Considered

• Judicial selection Appointment or election?
• Accountability of incumbents to voters
• Effect money has on elections
• Low levels of voter participation
• Limited number of contested elections

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Sources of Information and Conventions Used

• Election results information
• Secretary of State
• Administrative Office of the Courts
• County Auditor Offices
• Campaign finance information
• Public Disclosure Commission (Forms B, C-1, C-4,
  and L) reports submitted by candidates.

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Conventions Used in Research

• Candidates who opted to limit their expenses and
  file mini-reports had the maximum allowable
  campaign expenditures attributed to them
  (1,500-3,500).
• Loan amounts not repaid prior to election counted
  as expenditure.
• In-kind contributions counted as expenditure at
  candidate stated value

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Topic 1 Judicial Selection in Washington
Appointment or Election?

• In Washington most judges reach the bench by
  being appointed by the Governor.

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• Supreme Court
• Over 50 of all Justices initially appointed
• Court of Appeals
• 14 of the 21 current Judges were appointed
• Superior Court
• 111 (58) of current judges appointed to bench

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Following appointment, judges are still
accountable to the voters Right?
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Post-Appointment Accountability

• Since 1994 in the 5 largest counties 74 people
  have been sworn in as new judges of the Superior
  Court.
• 73 (54) were appointed to bench
• 45 (33) of these judges have NEVER stood for
  election.

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• Topic 2
• Incumbency
• Do voters have the opportunity to evaluate the
  performance of incumbent judges at the ballot
  box?
• What effect does incumbency have on judicial
  elections?

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SUPERIOR COURT JUDGES FACING REELECTION
CHALLENGES
Open seat contests omitted
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Superior Court Incumbents

• 2004
• 2 judges lost elections
• (1.25 of non-retiring judges)
• 2000
• 2 judges lost elections
• (1.23 of non-retiring judges)
• 1996
• 9 judges lost elections
• (5.59 of non-retiring judges)

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Incumbency and the Appellate Bench

• Since 1992, only 1 sitting Supreme Court Justice
  and 3 sitting Court of Appeals Judges have lost a
  reelection bid.
• Only 7 Court of Appeals judges have been
  challenged

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Why is this so?

• Sitting judges doing great job
• Local culture
• Potential challengers cant overcome Judges name
  recognition
• Too expensive to mount an effective campaign that
  is likely to fail.

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Topic 3 Money in Judicial Elections
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Money in Judicial Elections

• Money in judicial elections can be
• A. A necessary evil.
• or
• B. The conduit for speech

In reality, absent a publicly funded campaign
system it is both a necessary evil and conduit
for speech.
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Concerns about Money and Judicial Campaigns

• Judges and candidates need to chase the money to
  effectively campaign
• Impact of special interest contributions
• Appearance of attorney and current judge
  contributions
• Undue advantage to wealthy individuals

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How much influence do you think campaign
contributions made to judges have on their
decisions?
PUBLIC JUDGES
A great deal of influence 36 4
Some influence 40 22
Just a little influence 14 20
No influence 5 36
Dont know/refused 5 18
2001 Greenberg Quinlan Rosner Research Inc. for
Justice at Stake
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Money in Washingtons Judicial Elections

• In Supreme Court elections no clear patterns
  exist on source of funds and effect of campaign
  war chest.
• Candidates who have raised large sums of money
  have been defeated.
• Primary source of funds are from the attorneys
  and candidate
• While many candidates have received significant
  contributions from special interests (PACs,
  unions, political parties, trade and professional
  associations), only a few elections have seen
  huge amounts.

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Money in Washingtons Judicial Elections

• In Superior Court and Court of Appeals elections
  there are limited contributions from interest
  groups.
• Most campaigns are self-funded or strongly
  supported by attorney contributions.

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SUPREME COURT ELECTIONS 1990-2004Average
Campaign Expenditures
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COURT OF APPEALS ELECTIONS 1996-2004
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2004 CONTESTED SUPERIOR COURTAverage Campaign
Expenditures
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Relative Money vs. Total Money

• While a candidates total amount of campaign
  funds is important, a candidates war chest
  relative to his/her opponents funds is more
  important.

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Who is better off?

• Race 1
• Candidate A 200,000
• Candidate B 200,000
• Race 2
• Candidate A 75,000
• Candidate B 5,000

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How Does Money Help?

• Ordinary Least Squares Regression Controlling
  for incumbency
• 1 increase in relative campaign funds leads to a
  .33 increase in percent of vote.
• 10 increase associated with 3.3 increase in
  vote received

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• Topic 4
• Voter Participation in Judicial Elections

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Voter Participation and Falloff

• Invariably many voters who vote in an election do
  not vote for in judicial races.
• National studies have shown about a 20 FALLOFF
  from the total number of ballots returned in a
  jurisdiction to the number of votes cast in
  judicial elections.
• Sheldons research on Washingtons judicial
  elections shows that this is due primarily to
  lack of knowledge of the candidates.

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SUPREME COURT FALLOFF 1984-2004
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Percent of Voters Voting in 2004 Superior Court
Primary Election
Average Voting Rate of Turnout
68.36 of Reg. Voters 31.93
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Percent of Voters Voting in 2004 Superior Court
General Election
Average Voting Rate of Turnout
78.24 of Reg. Voters 64.04
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Can Falloff be Reduced?

• Yes, by increasing information available to
  voters.
• Voters pamphlet a good start, but candidate
  self-description viewed somewhat cynically.
• Some states use Judicial Performance Evaluations
  to provide information to voters.

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Judicial Performance Evaluation Programs

• Independent commission of citizens, attorneys and
  judges collect information about judges from
  several sources
• Attorneys having appeared before the judge
• Jurors
• Repeat witnesses
• Affidavit records
• Judicial disciplinary actions
• Objective information provided to voters in
  voters pamphlet without comment on how to vote

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Facts About Judicial Performance Evaluation
Programs

• JPE programs do not tell voters how to vote
• JPE programs are not conducted by the government
  or bar elitists.
• JPE programs go beyond bar polls and obtain info
  from everyday people
• JPE programs simply provide a piece of objective
  information for voters to consider

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JPE Programs are Popular Among Judiciary and
Voters

• Prior to implementation judges have been strongly
  opposed while voters supportive
• In states with JPE programs Judges have
  overwhelmingly endorsed their continued use.
• Research has found that voters in states with JPE
  programs have lower Falloff rates and are better
  informed about judges
• AJS pilot studies of Washington Judges were
  viewed positively by Judge participants and have
  received national attention.

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• Topic 5
• The Dearth of Contested Elections

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The Dearth of Contested Elections

• Having judges selected by popular election
  assumes that there will be contested elections
• In Washington the vast majority of judicial
  elections are uncontested.
• Why is this so?
• Sitting judges doing great job
• Local culture
• Potential challengers cant overcome Judges name
  recognition
• Too expensive to mount an effective campaign that
  is likely to fail.

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COURT OF APPEALS ELECTIONS 1992-2004
Overall 75 of elections have been uncontested
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SUPERIOR COURT ELECTIONS
Overall 85 of elections have been uncontested
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Percent of Superior Court Elections Contested
1996-2004