Judicial retention election trends 1964-2006

Judicature

Volumn 90, Issue 5, 2007, Pages 208-213

  Aspin, Larry ^a  

^a BRADLEY UNIVERSITY   (United States)

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EID: 34249654015     PISSN: 00225800     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (18)

1. The 6,306 retention elections in the data set are all major trial court, appellate court, and supreme court retention elections held in the states of Alaska, Arizona, Colorado, Illinois, Indiana, Iowa, Kansas, Missouri, Nebraska, and Wyoming from 1964 through 2006. These 10 states use pure retention elections for the major trial court and all higher courts, hold the elections at the even-numbered years' fall general elections (i.e., 1976, 1978, 1980, etc.), and began using retention elections at least by 1976. Eight other states also employ retention elections; however, they either began to do so after 1976 and/or do not use them for trial courts. Thus, their elections are not included here so as to maximize comparability across time.
2. For the earlier summaries see William Hall and Larry Aspin, What twenty years of judicial retention elections have told us, 70 JUDICATURE 340 (1987);
3. Larry Aspin, William Hall, Jean Bax and Celeste Montoya, Thirty years of judicial retention elections: an update, 37 SOC. SCI. J. (2000);
4. and Larry Aspin, Trends in judicial retentions elections, 1964-1998, 83 JUDICATURE 79 (1999).
5. The trust index cannot be calculated for 2006. The 2006 American National Election Study included only one of the four questions used to construct the trust index.
6. It has been suggested by many researchers, and empirically supported by others (e.g., See Gary Langer, Trust in government...to do what? 13 PUBLIC: PERSPECTIVE 7 (July/August 2002) that this upward spike in trust was due to confidence in national officials to handle issues related to national security and terrorism, not confidence in national officials to handle social issues, which remained low. Also, state and local government did not also enjoy an upward spike in trust in 2002, but rather remained constant
7. (See Richard Cole and John Kincaid, Public opinion on U.S. federal and intergovernmental issues in 2006: continuity and change, 36 PUBLIUS 443 (2006). Thus, it is very possible that trust in the judiciary did not also experience an upward spike after 9/11.
8. As expected, when the analysis is limited to judges who voters supported less than the other judges in the district (e.g., an affirmative vote 5% or more below that of the other judges in the district), the lower the traditional affirmative vote in the district the more likely the judge was defeated. Obviously, the closer a judge's support level is to the retention threshold, the more vulnerable the judge is to smaller shifts in the affirmative vote.
9. In the other states employing retention elections that are not included in the analysis reported here, judges also have varying degrees of cushion from the retention threshold. California, Florida, Maryland, Oklahoma, South Dakota, and Tennessee employ retention elections only for higher courts, whereas New Mexico and Utah use retention elections for major trial courts, but began to do so more recently. Of these states all use the 50% criteria for retention except New Mexico, which increased it to 57%. The average affirmative votes in 2006 were California (72.9%), Florida (69.5%), Maryland (87.3%), New Mexico (77.1%), Oklahoma (67.0%), South Dakota (83.7%), Tennessee (75.3%), and Utah (79.3%). Utah's vote increases to 81.2% when the one defeated trial court judge is removed from the calculation.
10. Note that the sharp 1990 decline in the affirmative vote occurred in 9 of 10 states, but the only judges defeated in 1990 were in Illinois. Conversely, the defeat of 10 judges in 1990 was not the reason for the decline in the national affirmative vote that year. There are so few defeated judges that removing them from the analysis produces no effect on the national average affirmative vote.
11. There are rare cases when judges have not been retained in part because of a general decline in the affirmative vote for an entire district. In 1972 Judge William A. Ginos, Jr, (Illinois 4th district trial judge) received an affirmative vote of 61.4%, just above the 60% retention threshold and 7.0% below the district-year mean of 68.4%. In 1978 the district-year mean dropped 3.1% to 65.3% and the judge's vote also dropped 3.1% to 58.3%, which again was 7.0% below this district-year mean. Judge Ginos maintained his relative position in the district, but was removed from the bench by a small decline in the general affirmative vote.
12. The district-year mean is calculated in 18 of the 30 elections where judges won at least one prior retention election and 11 of the 26 elections where judges were defeated in their first retention election.
13. As a final note on defeated judges, defeat does not always end judicial careers. There are rare cases where judges have lost retention elections and subsequently returned to the bench. For example, Judge John DeLaurenti (Illinois 3rd district trial court) lost in 1980, was returned to the bench in 1982, and subsequently retained in 1988 and 1994.
14. The district-year mean is calculated using all judges on the ballot. Only very minor differences occur when the district-year mean is calculated individually for each judge (i.e., the district-year mean is for all other judges on the ballot).
15. One problem with measuring voter special attention with just distance from the district-year mean is that 2,731 elections occur in districts with less than four judges on the retention ballot. An additional way to identify judges who are receiving special attention, changes in a judge's retention vote across time, is not reported because of its limitations. First, it is insensitive to a judge's first retention election. Recall that 26 of the 56 losses occurred the first time judges stood before voters and first time retention elections represent 48% of all elections in the database. Second, yearly variation in the affirmative vote is substantial in a few years and in a few districts (e.g., in 1992 the affirmative vote declined over 15 percentages points for most judges in Maricopa County, Arizona).
16. Distance from the district-year mean is not calculated for 2,731 of the 6,306 elections, those with three or fewer judges on the ballot. Since 27 of the 56 elections where judges were defeated come from these 2,731 elections, clearly in some of these 2,731 elections the usually supportive retention voters tried, but failed, to remove judges. Given the pattern reported above of judges being defeated in only one-third of the elections where voters single them out for negative attention, it is not unreasonable to estimate that in 54 of these 2,731 elections judges were retained even in the face of lower support by a significant proportion of usually supportive voters.
17. For the 1976-1994 period rolloff in Arizona was 33.2%, whereas it increased to 43.1% for the 1996-2006 period. The increase is primarily in Maricopa County where rolloff has increased substantially from an average 35.3% in the 1976-1994 period to an average 48.8% in the 1996-2006 period, peaking at 54.5% in 2004. In contrast, Cook County, Illinois, another large urban county, saw rolloff drop from an average 52.4% in the 1976-1994 period to an average 46.1% in the 1996-2006 period, with a low of 38.8% in 2006.
18. In contrast to rolloff, while shifting ever so slightly the affirmative vote shows no clear signs of oscillating with the election year. In the 1976-1994 period the affirmative vote was higher in presidential election years, 75.9%, than in non-presidential election years, 74.1%. However, for the 1996-2006 period this has changed to 74.3% in presidential election years and 74.8% in non-presidential election years.