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

1. 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

2. 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

3. 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

4. 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

5. AXIOM OF 80% • 80% of people don’t 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

6. 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

7. 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.

8. 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

9. In Washington most judges reach the bench by being appointed by the Governor. Topic 1 Judicial Selection in Washington: Appointment or Election?

10. 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

11. Following appointment, judges are still accountable to the voters… Right?

12. 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.

13. 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?

14. SUPERIOR COURT JUDGES FACING REELECTION CHALLENGES* *Open seat contests omitted

15. 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)

16. 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

17. Why is this so? • Sitting judges doing great job • Local culture • Potential challengers can’t overcome Judge’s name recognition • Too expensive to mount an effective campaign that is likely to fail.

18. Topic 3 Money in Judicial Elections

19. 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.

20. 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

21. How much influence do you think campaign contributions made to judges have on their decisions? 2001 Greenberg Quinlan Rosner Research Inc. for Justice at Stake

22. Money in Washington’s 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.

23. Money in Washington’s 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.

24. SUPREME COURT ELECTIONS 1990-2004Average Campaign Expenditures

25. COURT OF APPEALS ELECTIONS 1996-2004

26. 2004 CONTESTED SUPERIOR COURTAverage Campaign Expenditures

27. Relative Money vs. Total Money • While a candidate’s total amount of campaign funds is important, a candidate’s war chest relative to his/her opponents’ funds is more important.

28. Who is better off? Race 1 Candidate A $200,000 Candidate B $200,000 Race 2 Candidate A $75,000 Candidate B $5,000

29. 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

30. Topic 4 Voter Participation in Judicial Elections

31. 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. • Sheldon’s research on Washington’s judicial elections shows that this is due primarily to lack of knowledge of the candidates.

32. SUPREME COURT FALLOFF 1984-2004

33. Percent of Voters Voting in 2004 Superior Court Primary Election Average Voting Rate % of Turnout 68.36% % of Reg. Voters 31.93%

34. Percent of Voters Voting in 2004 Superior Court General Election Average Voting Rate % of Turnout 78.24% % of Reg. Voters 64.04%

35. 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.

36. 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 voter’s pamphlet without comment on how to vote

37. 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

38. 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.

39. Topic 5 The Dearth of Contested Elections

40. 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 can’t overcome Judge’s name recognition • Too expensive to mount an effective campaign that is likely to fail.

41. COURT OF APPEALS ELECTIONS 1992-2004 Overall 75% of elections have been uncontested

42. SUPERIOR COURT ELECTIONS Overall 85% of elections have been uncontested

43. Percent of Superior Court Elections Contested 1996-2004