Alaska's Judicial Retention Elections: a Comparative Analysis

• Publication year: 2017

§ 34 Alaska L. Rev. 143. ALASKA'S JUDICIAL RETENTION ELECTIONS: A COMPARATIVE ANALYSIS

Alaska Law Review
Volume 34, No. 2, December 2017
Cited: 34 Alaska L. Rev. 143

ALASKA'S JUDICIAL RETENTION ELECTIONS: A COMPARATIVE ANALYSIS

ALBERT J. Klumpp ^[*]

ABSTRACT

The results of recent judicial retention elections in Alaska, and the recent increase in political activities related to judicial selection in Alaska and many other states, have given rise to concerns about the fates of future Alaska retention candidates. This Article analyzes the results of retention elections nationwide and suggests that there may be good reason for Alaska judges to be worried. Baseline levels of voter support for retention candidates in most of Alaska are among the lowest in the country, and have gradually been declining over time. In addition, Alaskan voters have targeted individual judges for removal more frequently than voters in most other states. This Article's analysis indicates that ensuring the retention of competent Alaska judges in the future requires more than simply improving the effectiveness of pro-retention campaigns for individual candidates, and that understanding and addressing deeply held voter attitudes must be part of a more comprehensive effort.

INTRODUCTION

In May 2017, as part of its annual convention, the Alaska Bar hosted a CLE program that may well have been the first of its kind anywhere in the United States. The program-"The Changing National Landscape in Judicial Retention and its Implications for Alaska"-was essentially a how-to guide for dealing with judicial retention elections and the opposition that can arise against a judge seeking retention. ^[1] It addressed ethical issues and conflict-of-interest questions facing retention candidates and potential supporters and opponents, discussed the extent to which judges can campaign on their own behalf and solicit outside assistance, and shared stories of successful retention campaigns and the strategies that those campaigns employed. ^[2]

The program was a result of concerns over two recent events. One was a 2014 attempt to enact an amendment to the state constitution's judicial article. ^[3] The amendment would have drastically altered the Alaska Judicial Council, giving the state's governor the power to appoint the majority of its members and thus greatly expand the governor's influence over the selection of new judges. ^[4] The proposal fell just short of passage in the state senate, and while its near-term prospects for adoption have faded substantially, ^[5] the opposition effort that it generated continues to remain active. ^[6] In fact, the CLE program itself was produced by Justice Not Politics Alaska, a citizen organization that was formed in the wake of the proposal and that continues to advocate in favor of the current judicial selection system. ^[7]

The other event of concern was the 2016 Alaska general election, specifically the low voter approval rates for judicial retention candidates.(fn8)Walter "Bud" Carpeneti, former chief justice of the Alaska Supreme Court, summarized this concern in his introductory remarks at the CLE program:

In the 2016 election cycle, some results in Alaska's judicial retention elections caused many observers to wonder if our constitutional merit system is vulnerable to the possibility that coordinated non-retention campaigns against competent and qualified sitting judges could be successful, and that we may be close to losing the services of some really good and fair judges for reasons that have nothing to do with judicial merit. ^[9]

As its title indicates, the CLE program was predicated on the idea of a "changing national landscape" that has altered the playing field upon which retention elections are conducted. To support this idea, program panelists discussed Supreme Court cases that have significantly impacted the conduct of retention campaigns and the financing of judicial elections. ^[10] In addition, panelists presented and discussed evidence showing recent increases in campaign spending in both contested and retention elections, ^[11] as well as increases in attempts by state legislatures to eliminate judicial merit selection or otherwise reduce the independence of state courts. ^[12]

However, the program did not fully explore one important topic: the actual results of retention elections. It offered a few summary statistics and touched upon recent high-profile retention controversies, but, due to its time and content limitations, it was unable to offer a comprehensive picture of election results or thoroughly assess whether or not retention voting patterns have shifted in recent years. This omits an important piece of the overall picture, because the extent to which a retention candidate is at risk of removal in any single election depends fundamentally on the baseline level of support that a jurisdiction's electorate gives its retention candidates in general.

This Article will examine the results of retention elections in Alaska and nationwide, in order to assess the risk that Alaska's retention candidates face and determine whether that risk is increasing. It will first present a national overview of past retention elections, and then will compare Alaska's election results to those of the other retention states. Since Alaska is the only U.S. state to have employed the retention election method continuously since statehood, a comparative analysis of this kind has important implications not just for Alaska, but also for many other states where the debate over judicial selection methods is less settled.

The data set used in this analysis has its origins in a 2005 doctoral dissertation that studied voting patterns in urban jurisdictions with long retention ballots. As the result of subsequent, ongoing research and data-gathering through election websites, historical archives, government agencies and other sources, the data set now encompasses nearly the entire retention voting history of the United States, including all of the state-level trial and appellate courts in all of the retention states.

I. Retention Elections Nationwide

Judicial retention elections were first proposed during the Progressive Era, a time when local political machines were able to exert considerable control over judicial systems. ^[13] Reformers advocated a procedure under which councils of sitting judges would select new individuals to fill judicial vacancies by appointment, and the public would decide the fate of incumbents through a thumbs-up-thumbs-down vote without challengers. ^[14] Such a system, the reformers argued, would minimize the influence of party politics over the judiciary while retaining a measure of accountability to the electorate. ^[15]

The nation's first retention elections were held in California in 1936, two years after the state's voters approved a constitutional change to allow for retention elections for all appellate courts. ^[16] Missouri followed in 1942, debuting retention elections for all appellate courts and for most trial courts in the St. Louis and Kansas City regions. This reform was part of a comprehensive judicial selection plan known now commonly as the Missouri Plan, ^[17] which Alaska uses today. Today there are twenty-two U.S. states in which at least some judges stand for retention in noncompetitive elections. Table 1 lists the states and the extent to which retention elections are used in each state.

Table 1. Use of Retention Elections in U.S. States

Appellate courts only: California, Florida, Maryland, Oklahoma, South Dakota, Tennessee

All state courts: Alaska, Colorado, Illinois, Iowa, Montana*, Nebraska, New Mexico, Pennsylvania, Utah, Wyoming

Appellate courts and some trial courts: Arizona, Indiana, Kansas, Missouri

Local courts of limited jurisdiction: Colorado (county), Georgia (Atlanta Municipal), Idaho (county), Kansas (county), Montana* (county), Nebraska (municipal, juvenile), New Mexico (Bernalillo County), Pennsylvania (Philadelphia Municipal and Traffic Courts), Utah (Justice Courts)

*Unopposed judges only

All of the states except two require the approval of either 50% or a simple majority of participating voters to win retention. Illinois requires 60% ^[18] and New Mexico requires 57%. ^[19]

As of 2017, a total of 14,418 retention elections have taken place for state trial and appellate judges in our nation's history. More than 3000 additional elections have been held for local courts of limited jurisdiction. Table 2 presents summary figures on the state-court retentions.

Table 2. Historical Retention Election Totals by State

	First Year of Retention Elections	Number of Candidates	Number of Removals	Removal Rate
Alaska	1962	449	5	1.11%
Arizona	1976	1078	3	0.28%
California	1936	698	3	0.43%
Colorado	1970	1065	13	1.22%
Florida	1978	432	0	0.00%
Illinois	1964	2671	29	1.09%
Indiana	1972	226	2	0.88%
Iowa	1964	1617	7	0.43%
Kansas	1960	1030	1	0.10%
Maryland	1978	96	0	0.00%
Missouri	1942	1288	3	0.23%
Montana	1974	213	0	0.00%
Nebraska	1964	903	7	0.78%
New Mexico	1990	346	5	1.45%
Oklahoma	1968	187	0	0.00%
Pennsylvania	1969	1044	18	1.72%
South Dakota	1984	20	0	0.00%
Tennessee	1974	189	1	0.53%
Utah	1970	584	2	0.34%
Wyoming	1974	282	6	2.13%
TOTALS		14,418	105	0.73%

Note: Does not include local courts of limited...