The Partisan Character of State Supreme Court Retention Elections

Abstract

Proponents of changing the manner by which state judges are selected most often advocate adopting a system its backers call “merit selection.” A central part of so-called merit selection is the use of retention elections which ask voters to decide whether or not a sitting judge should be retained in office for another term. In a retention election only the incumbent appears on the ballot, with the options of voting either yes or not to the question “Should Judge XXX be retained in office.” In this paper I examine the partisan tendencies of voting in 610 statewide retention elections for state supreme court justices starting with the first such election in 1936 in California, and continuing through the 2011 election in Pennsylvania. The unit of analysis is the county, and the indicator of partisanship is the correlation between the percent voting to retain the justice and the percent voting for the Democratic gubernatorial candidate, which I label the “partisan correlation.” The analysis shows a great deal of change at the state level, although the nature of the change varies sufficiently that there is little evidence of change when one looks at all elections. Regression analyses show that the ideological character of the state and any party linkage that can be attributed to the incumbent justice are associated with the direction and magnitude of the partisan correlation. Unsurprisingly, partisan correlations tend to be higher when the percent voting to retain is lower, but the association is not purely (or even largely) due to elections in which there is organized opposition to retention. The results of this analysis make clear that relying on retention elections to decide whether members of state supreme courts should be retained in office does not eliminate political influences, and those influences are not purely a function of controversial decisions by state supreme courts or efforts by groups to remove justices from office.