Michael Bitzer: Pros and cons of partisan judicial elections
By Michael Bitzer
Special to the Salisbury Post
In the Feb. 26 edition, the Salisbury Post gave a ědartî to NC House Bill 64 (Senate Bill 47, co-sponsored by Rowan Countyís state Sen. Andrew Brock (R-Davie)) to return judicial elections in North Carolina to a partisan election, rather than the current non-partisan election system. In the study of judicial politics, it might be helpful to know what researchers have found when judges are subjected to the ěwill of the people,î both in terms of partisan and non-partisan elections.
Twenty-two states use elections to select judges, with a majority of those states utilizing non-partisan elections óNorth Carolina being one of them. Surrounding the idea of judicial elections are contending values: making the third branch of government responsive and accountable to the people, while ensuring the idea of fairness and impartiality in the administration of justice.
In an analysis of judicial elections across the states, two political scientists (Chris Bonneau and Melinda Gann Hall) explored the arguments and ěmythsî of judicial elections, one of which is that nonpartisan elections ědepoliticizeî campaigns and decrease the amount spent on judicial elections. In fact, the researchers found that nonpartisan judicial elections increase the costs of campaigns, whereas partisan elections decreased the costs of elections.
In defending judicial elections, the scholars noted that partisan elections reduce the cost of gathering information for voters, and the researchers found that partisan elections ěprovide a relatively rational basis upon which to selectî judicial candidates by voters.
Some argue that money may buy justice, and in West Virginia, money did appear to buy recently a seat on that stateís supreme court and influence a major decision there ó which the U.S. Supreme Court struck down subsequently. According to the Council of State Governments, each state supreme court candidate in 2000 across the nation raised, on average, more than $430,000, with 16 candidates raising more than $1 million each. But Bonneau and Hall found that money is ěa necessary condition for educating and mobilizing votersî and judicial elections are no different than legislative and executive contests.
Some argue that ěpolitics and the bench donít mix,î that justice shouldnít be beholden to the party affiliation of the judge and those appearing before the court. In a host of other studies which examined the argument that nonpartisan elections improve the quality of the bench, researchers have found that partisan elections do not necessarily produce less qualified judges.
Before 2004 in North Carolina, judicial officers had their partisan affiliation listed on the general election ballots. One facet that judicial politics scholars investigate is the decrease in the votes cast down the ballot compared to the top-line office on the ballot (otherwise known as ěrun-offî).
In four elections that were partisan (1996, 1998, 2000 and 2002), the run-off from the top of the ballot (U.S. president, U.S. Senate, or the combined U.S. House races) in those years would range from 2.83 percent for the chief justice to 8.68 percent for the court of appeals judges.
After non-partisan elections were introduced with the 2004 election in North Carolina, the run-off percentages dramatically worsened. In the 2004 election, the N.C. Supreme Court associate justices contests saw a run-off of 23 and 26 percent, with the court of appeals justices 27 percent off the presidential votes cast.
In 2008, in a highly competitive election and with an astounding 70 percent of registered voters showing up to the polls, there was anywhere from 31 percent to 44 percent run-off for the court of appeals judges. Just last year, the decrease in votes cast for the lone court of appeals judgeship, which featured the first statewide instant run-off system, was nearly 27 percent from the U.S. Senate race between Burr and Marshall.
While those who advocate non-partisan judicial elections argue that the electorate is better served, the electorate may think otherwise. Some contend that partisan affiliation serves as a critical ěcueî to voters, along with the fact that those voters who wish to cast a ěstraight-ticketî ballot donít impact the judicial elections.
The third branch of government is a critical policymaker in many regards ó most recently, North Carolina education policy has been greatly impacted by a lone judge in the Leandro case. While politics may never be fully removed from those who wear the black robe, the system of judicial elections ó whether partisan or non-partisan ó is still in the hands of a Tar Heel electorate that seems, in recent non-partisan judicial elections at least, to not really care about these important offices of our state government.
Dr. Michael Bitzer is associate professor of political science and history at Catawba College, where he also serves as chairman of the Department of History & Politics.