The False Promise of Judicial Elections in Ohio

AuthorMichael E. Solimine
PositionProfessor of Law, University of Cincinnati College of Law. B.A., Wright State University (1978)
Pages559-581

Page 559

    This article was presented at the symposium on judicial elections sponsored by the Capital University Law Review on January 31, 2001. Larry Baum, Marianna Brown Bettman, Rick Hasen, Dan Lowenstein, Judith Maute, Rich Saphire, and Joe Tomain provided thoughtful and helpful comments on an earlier draft, as did the other symposium participants and several audience members. Thanks also to Jennifer Bergeron and Paula Boggs for their research assistance. The article is dedicated to Cincinnati attorney Bruce I. Petrie, Sr., for his indefatigable efforts to reform judicial selection in Ohio.
I Introduction

The dawning of the new millennium is an opportune time for a symposium on judicial elections. The popular press seems to be paying increasing attention to the issue, particularly regarding the election of justices to state supreme courts.1 Although there is extensive academic literature on the selection of federal and state judges, there seems to be a renewed and refocused interest in the election of judges, as exemplified by our keynote speaker.2 Here in Ohio, the contentious campaigns for two slots on the Supreme Court of Ohio in the fall of 2000 generated considerable local publicity and drew national attention.3 In May of last year, the Ohio Courts Page 560 Futures Commission called for a review of the current process of judicial elections,4 a clarion echoed even more bluntly by Chief Justice Thomas J. Moyer in the aftermath of last fall's elections.5

In this article I focus on Ohio's recent experience with judicial elections as a case study of the efficacy of that method of judicial selection. By constitutional amendment in 1851,6 Ohio switched from an appointive to an elective system for its judges, as did most other states in the post-Jacksonian era.7 The reasons for the change, both in Ohio and elsewhere, are somewhat obscure. But to varying degrees, the switch appears to have been driven largely by Jacksonian notions of popular sovereignty, to have the public more involved in the selection of judges, and in turn make judges more accountable to the electorate.8 Among the goals of a rational system of judicial elections (indeed, of elections for any public office) would be to have the highest possible participation of the voting public, to give those voters a choice for any particular elective position, and to make that choice a meaningful one, that is, make it competitive.9

Thus, using these criteria and Ohio as an example, I examine judicial elections on their own terms. In my view, as I hope to demonstrate below, in the past two decades, judicial elections in Ohio have generally performed poorly in attaining these goals. The first two parts of the article examine the Page 561 process of elections themselves. Part I considers how informed and participating the Ohio electorate is in judicial elections, and finds relatively low levels of each. Part II considers the competitive nature of judicial elections. That Part finds that races for the Ohio Supreme Court are ferociously competitive, while almost all races for positions in lower courts are not. Most judges run unopposed, and the vast majority of incumbent judges win election or reelection, whether opposed or not. Implicit in judgments about an election system are the concerns about the quality of the judicial officers it produces, and how representative is the demographic makeup of judges. Part III of the article turns to those issues, focusing particularly on how women and minorities are represented among the Ohio judiciary.

Although my appraisal is not totally negative, I nonetheless conclude that recent judicial elections in Ohio have not performed particularly well as an elective system. Of course, I am not alone in this conclusion,10 and some significant efforts have been made to lessen the role of elections for judges in Ohio. So far, those efforts have failed, and in Part IV, I suggest some reasons for the prevalence of the status quo.

I am not providing a comprehensive analysis of judicial elections in Ohio. By focusing on the above factors, there is much which I can only allude to or that I leave out entirely. Among these topics are the financing of judicial campaigns and efforts to place curbs on spending;11 a deeper analysis of judicial campaigns themselves, the role of the political parties and of interest groups in those campaigns;12 and the effect of the selection process on judicial Page 562 behavior.13 These topics have been addressed by others, including other contributors to this symposium. They are important chapters of the story of judicial elections in Ohio, and, together with the topics I address here, should inform discussions of whether and how to modify such elections, both in Ohio and elsewhere.

II The Informed Electorate in Judicial Elections

There are many types of elective systems for state judges in this country: merit-based systems with retention elections, various forms of contested partisan or non-partisan elections, or, as in Ohio, partisan primaries (as needed) with non-partisan elections.14 A full discussion of these methods is beyond the scope of the present article. Despite the disparate formats, many studies over many years demonstrate one commonality: no matter what form of judicial election, most voters in most elections are largely uninformed about the persons running for these offices, or about the issues raised in campaigns for those offices.15 Voters respond by relying heavily on partisan affiliation, familiar names, incumbency, or similar cues, or simply do not vote at all for judges on the ballot.16 Page 563

The same conclusions can be drawn with respect to judicial election in Ohio. Let's first consider elections to the Ohio Supreme Court. Ohio State University political scientist Lawrence Baum has carefully studied the matter,17 largely in the form of surveys of voters during or after elections.18Although perhaps old hat to followers of Ohio politics, his findings are nevertheless eye-opening. Surveys indicate that "significant numbers of [voters] could not recognize the candidates or could not rate them," and in general "voters knew little about the candidate."19 To the extent they could provide reasons, voters identified name recognition and partisan affiliation of the candidates, incumbency status, and gender, to varying degrees.20Moreover, "a substantial minority of those who recalled voting for a candidate did not offer any reasons for their choices, even with a fairly broad definition of what constitutes a 'reason.'"21

Even when voting for other candidates and issues on a ballot, substantial numbers of voters simply skip the judicial contests. This practice, known as Page 564 voter "roll-off," is taken as another measure of the electorate lacking information. For decades there has always been roll-off for Ohio Supreme Court elections. The average roll-off in the past two decades has been about 20%.22 In more contentious races, the roll-off may be as little as 10%.23

Would we expect the same picture for elections for the intermediate appellate and trial courts in Ohio? On one hand, there might be even less of an informed electorate, since presumably there would be less media attention to a judicial election for a small political subdivision in the state, for a putatively less important position. In contrast, perhaps some voters are more likely to know about a local judicial incumbent or candidate. However those currents play out, the available evidence24 indicates that elections for lower courts in Ohio largely mirror the patterns observed for voting in Supreme Court races. Once again, though Ohio is nominally a state with non-partisan judicial elections, political affiliation plays a dominant role in guiding the votes in lower court elections. Also playing important roles are such factors as which candidate (if any) is an incumbent, and name recognition and Page 565 familiarity, with gender and race playing more limited roles.25 Once again, considerable roll-off appears in lower court races.26

What accounts for this largely uninformed electorate, and why should it concern us? On the first question, no doubt many fingers can be pointed. Start with many voters themselves, who for various reasons do not devote the necessary time or energy to become better informed about judicial races. Yet even if more voters acted more responsibly, they would be handicapped by the scarcity of available information. The news media does a generally poor job of covering judicial campaign,27 and ethical rules place severe limits in the ability of candidates to speak meaningfully about cases and issues that come before courts.28 I do not mean to be too harsh on voters; perhaps their general apathy is driven in part by being bombarded by much more information about campaigns for other offices,29 or by the lack of information about judicial races in the first instance. Indeed, simply not voting for judges on a ballot can be seen as a rational response to the lack of information.

On the second question, normatively we might ask, "Who cares?" Many voters are relatively informed about the campaigns and issues for all elective offices. And, it can be argued, voters are making rational choices, given the dearth of information, by relying heavily on party affiliation, incumbency, and name recognition. Thus, a rational Democratic voter might assume that a judicial candidate affiliated with her party would be, for that reason alone, the sort of judge she would prefer to have on the bench. Similarly, a rational voter might think that an incumbent judge, simply by virtue of already being there, will be a better judge than a challenger. Page 566

This argument is not without some force but, in my...

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