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Contestation, Competition, and the Potential for Accountability In Intermediate Appellate Court Elections

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Contestation, Competition, and the Potential for Accountability In Intermediate Appellate Court Elections
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  70 JUDICATURE  Volume 91, Number 2 September-October 2007  A  dvocates of judicial elections have long held that they are essential if judges are to be held account-able to the public. While several of the foundingfathers, including Hamilton, believed that federal judgesshould be insulated from the public to promote judicialindependence, this hasnot been the predomi-nate view at the statelevel. Indeed, 39 stateshave some sort of elec-tion mechanism to select at least some of their judges. While organizations such asthe American Bar Association and the American JudicatureSociety have regularly argued against judicial elections,their worries seem to have fallen on deaf ears. 1 Polls findthat the public strongly supports the election of state judges, 2 and attempts to make the judicial selection processless democratic regularly fail. 3 Given the fact that judicial elections are here to stay forthe foreseeable future, we need to understand whetherthey function as supporters of judicial elections arguethey should. In other words, do judicial elections havethe potential to promote accountability? While Hall hasaddressed this question at the supreme court level, to ourknowledge no one has systematically analyzed judicialaccountability below the supreme court level. 4 In order tofill this empirical void, we examine results for all interme-diate appellate court general elections (partisan, nonpar-tisan, and retention) from 2000-2006. We compare thoseresults to elections for the U.S. House of Representativesand state supreme courts over the same time period. We find that the chief obstacle to accountability inintermediate appellate elections is to get people to run inthe first place. A sizable proportion of intermediate appel-late judges do not face any opposition. However, con-tested intermediate appellate elections look quite similarto those elections for the U.S. House and state supremecourts in terms of the share of the vote won by the incum-bent and the number of incumbents who are defeated.Finally, these results con-firm the worries of many observers who opposeretention electionsbecause they feel thoseelections are tanta-mount to giving judges life-time tenure. Only one inter-mediate appellate judge was not retained over the periodof study and, on average, about 75 percent of the public voted to retain intermediate appellate judges. Accountability  At the heart of the battle surrounding judicial electionsare arguments over judicial accountability and judicialindependence. Supporters of judicial elections claim that they are essential to hold judges accountable to the pub- Contestation,competition,and the potentialfor  ACCOUNTABILITY  in intermediate  APPELLATE COURTELECTIONS by MATTHEW J. STREB, BRIAN FREDERICK, and CASEY LAFRANCE  We thank Lawrence Baum, Melinda Gann Hall, C. Scott Peters, Margaret  Williams, and the anonymous reviewers for their helpful comments on previ-ous drafts of this manuscript. Any errors are, of course, our responsibility.1. Matthew J. Streb,  Judicial Elections: A Different Standard For the Rulemakers  ,in Matthew J. Streb ed., L  AWAND E LECTION P OLITICS :T HE R  ULESOFTHE G  AME (Boulder: Lynne Reinner Publishers, 2005).2. Justice at Stake Campaign. 2001. “Poll of American Voters.” Conductedby Greenberg, Quinlan, Rosner Research Inc. October 30-November 7.<http://www.justiceatstake.org>.3. Matthew J. Streb & Brian Frederick,  Judicial Reform and the Future of Judi- cial Elections  , in Matthew J. Streb, ed., R  UNNING F OR   J UDGE :T HE R  ISING P OLIT - ICAL , F INANCIAL ,  AND L EGAL S TAKESOF  J UDICIAL E LECTIONS (New York: NYUPress, 2007).4. Melinda Gann Hall, State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform  , 95 A  M . P OL . S CI . R  EV  . 315-330. (2001); MelindaGann Hall, Competition as Accountability in State Supreme Court Elections  , inMatthew J. Streb, ed., supra  n. 3.  Although few intermediate appellate judgesare actually challenged, when they arethey face tough races and many actually lose.      P      H      O      T      O     D     I     S      C  www.ajs.org JUDICATURE 71 lic. For example, Citizens for Judicial Accountability lament the insulationthey believe the court system and its judges are afforded, stating:  We believe in the three branches of gov-ernment: Executive, Legislative and Judi-ciary, each of them with clearly definedresponsibilities. However, the judiciary has become a government within a gov-ernment setting its own rules and lawsfor judges and lawyers, accountable only to itself under a self regulation, generally  with no penalty for acting in contraven-tion of the rules and laws. 5 Not everyone agrees. From a nor-mative perspective, opponents argueagainst judicial elections exactly because they do not want accountability  —or at least do not want judgesbeholden to the opinions of a ficklepublic. From an empirical stand-point, these opponents have ques-tioned whether judicial elections actually  promote accountability. 6  According to Dubois, the lack of accountability promoted by judicialelections is “the most fundamentaland damning of the criticisms leveledagainst popular judicial elections.” 7 In theory, there would seem to be agreat deal of support for the view that  judicial elections do not promoteaccountability. After all, most studiesof judicial elections find that votersknow almost nothing about the candi-dates. 8 This lack of knowledge isunderstandable given that untilrecently judicial candidates wererestricted in terms of what they couldtalk about on the campaign trail, mak-ing it difficult for voters to receivequality information about the candi-dates. 9 The lack of information is fur-ther compounded by the fact that  judicial elections, even state supremecourt elections, are not covered regu-larly by the press. 10 The fact that lowerlevel judicial elections are likely toreceive even less media coverage andhave less money spent by candidatesmakes accountability even more diffi-cult in those elections.Even though accountability is acentral part in the debate over judi-cial elections, few scholars have stud-ied whether they promoteaccountability. Hall has provided themost systematic study of accountabil-ity. 11  Analyzing 877 supreme court races from 1980-2000, Hall finds that incumbent justices are regularly chal-lenged, that the trend is increasing with time, and when justices are chal-lenged they usually face competitive 5. Citizens for Judicial Accountability. 2007.“Our Goal.” Available at http://www.judicialac-countability.org/ourgoal.htm (accessed January 16).6. Philip Dubois, F ROM B  ALLOTTO B ENCH :J UDI - CIAL E LECTIONSANDTHE Q  UESTFOR   A  CCOUNTABIL - ITY  28. (Austin: University of Texas Press, 1980);Charles Gardner Geyh, Why Judicial Elections Stink  ,64 O H S T . L J.43-79 (2003).7. Philip Dubois id. 8. Lawrence Baum,  Judicial Elections and Judicial Independence: The Voter’s Perspective. 64 O H . S T . L.R  EV  . 13-41 (2003); Lawrence Baum, Voters’ Infor- mation in Judicial Elections: The 1986 Contests for Ohio Supreme Court  ,, 77 K   Y  . L. J. 645-665. (1989);Charles Johnson, Roger Schaefer, & R. Neal McK-night, The Salience of Judicial Elections and Candi- date,. 49 S OC . S CI . Q. 371-378. (1978); NicholasLovrich & Charles Sheldon, Voters in Contested,Nonpartisan Judicial Elections: A Responsible Elec- torate or a Problematic Public, 36 W. P OL . Q. 241-256.(1983). For a competing argument see, MelindaGann Hall and Chris W. Bonneau,  Does Quality Matter?Challengers in State Supreme Court Elections  50 A  M . J. P OL . S CI .21-33 (2006).9. While the Supreme Court declared the“announce clause” to be unconstitutional inRepublican Party of Minnesota v. White ( 536 U.S.765 (2002)), several states still have other clausessuch as the “commit clause” in place. See, RachelP. Caufield. The Changing Tone of Judicial Elec-tion Campaigns as a Result of White, in Streb, ed.,supra n. 3. Though the constitutionality of thecommit clause is in question judicial candidatesstill may not have carte blanche on what they talkabout on the campaign trail. Even with the recent court rulings regarding judicial campaign speech,it still seems likely that intermediate appellatecandidates will have difficulty getting their posi-tions on issues to voters given the limited amount of media coverage and interest in these races. See,Richard L. Hasen, First Amendment Limits onRegulating Judicial Campaigns, in Streb, ed.,supra n. 3.10. Brian F. Schaffner & Jennifer Segal Diascro.  Judicial Elections in the News  , in Streb, ed., supra  n. 3.11. Melinda Gann Hall, State Supreme Courts in American Democracy: supra  n.5; Melinda Gann Hall, Competition as Accountability in State Supreme Court  Elections  , in Streb, ed., supra  n. 3.  VOTE VOTE VOTE VOTE VOTE VOTE CORBIS CORBIS  72 JUDICATURE  Volume 91, Number 2 September-October 2007 elections. She also notes differencesin accountability depending on theelection method. For example,incumbents are more likely to bechallenged in partisan races than innonpartisan ones. Furthermore,incumbent defeat rates during thetime period covered by Hall’s study are actually greater for supreme court races than they are for elections to theU.S. House of Representatives. 12 Inother words, according to Hall,supreme court elections promotemore accountability than the conven-tional wisdom would have us believe. While Hall’s analysis is informa-tive, it is limited exclusively tosupreme court elections. It is not clear whether her results hold forlower-level judicial elections, in ourcase intermediate appellate court elections. Given the distinctivenature of the two appellate courts’elections discussed previously, it isquite possible that the conventional wisdom on judicial accountability holds below the supreme court level. Previous research  While scholars have conducted a sig-nificant amount of research onsupreme court elections, they havedone surprisingly little on intermedi-ate appellate court elections. 13 Thelack of research is troubling giventhe fact that the volume of litigationhandled by intermediate appellatecourts is enormous and, in the vast majority of cases, these courts havethe final word. Some of the reasonfor the lack of systematic investiga-tion into this level of the judicialelection process no doubt has to do with the difficulty of obtaining data.In addition, the large number of contests poses a formidable obstacle.There are, however, a few studiesthat provide some insight intoaccountability in intermediate appel-late court elections, but none in thedepth that we can here. Aspin and Hall have looked care-fully at retention elections for all lev-els of judicial elections (trial court,intermediate appellate court, andsupreme court), but their researchoften combines all three levels inone analysis 14 or lumps appellatecourts (intermediate and supreme)together. 15 Hurwitz and Lanier stud-ied the ability of women and minori-ties to obtain seats on state appellatecourts, but, as with Aspin and Hall,they lump both intermediate appel-late and supreme courts together. 16 Perhaps most similar to our study is Abbe and Herrnson’s analysis of  judicial elections. 17 The authors com-piled an impressive nationwide dataset of candidates who ran for federal,state, and local offices between 1996and 1998. Of the 2,951 candidates inthe survey, 261 were judicial candi-dates from all levels of courts; yet,the overwhelming majority were can-didates for trial court elections. Forexample, in their analysis of compe-tition in judicial elections, of the 217 judicial candidates who answeredthat question, only 22 were candi-dates for appellate courts.Like the studies just mentioned, Abbe and Herrnson combine inter-mediate appellate and supreme court elections. So, while their analysis inquite informative regarding a widerange of topics related to judicial elec-tions (e.g., campaign spending, timecandidates spent fundraising, etc.),they are somewhat limited in terms of  what they can say specifically about candidates for intermediate appellatecourts. 18  Again because the costs of  voting in intermediate appellatecourt elections are likely to be greaterthan in supreme court elections, wemight expect the ability of intermedi-ate appellate court elections to pro-mote accountability to be less thansupreme court elections. Measuring accountability Before examining accountability inintermediate appellate court elec-tions, we must define the term. Fol-lowing Hall, we measureaccountability “as a product of elec-toral competition, produced by the willingness of challengers to enterthe electoral arena and the propen-sity of the electorate not to give theirfull support to incumbents.” 19 Theidea that electoral competition canpromote the accountability of publicofficials has been substantiated by research on the electoral process. 20 In their study of declining competi-tion in congressional elections Bauerand Hibbing write, “The level of competition in congressional elec-tions has  declined and should be asource of concern to those who valueelectoral accountability.” 21  Yet, electoral competition is not aperfect measure of accountability.First, elections are not a prerequisitefor accountability. Studies of decisionmaking on the U.S. Supreme Court find that public opinion is often a sig-nificant factor in the Court’s rulings. 22 12. Melinda Gann Hall, Competition as Account- ability in State Supreme Court Elections  , in Streb, ed., supra  n. 3.13. For a bibliography on supreme court elec-tions, see, Streb, ed., supra  n. 3.14. Larry Aspin, Campaigns in Judicial Retention  Elections: Do They Make a Difference?  20 J UST . S  YS . J.1-15. (1998); Larry Aspin, Trends in judicial reten- tion elections, 1964-1998  , 83 J UDICATURE . 79-81(1999); Larry Aspin, William K. Hall, Jean Bax, &Celeste Montoya, Thirty Years of Judicial Retention  Elections: An Update  , 37 S OC . S CI .J. 1-17. (2000).Larry Aspin,  Judicial retention election trends, 1964- 2006, 90 J UDICATURE . 208-213. (2007).15. Larry Aspin & William K. Hall,  Friends and Neighbors Voting in JudicialRetention Elections: A Research Note Comparing Trial and Appellate Court  Elections  , 42 W. P OL . Q. 587-596. (1989); WilliamK. Hall and Larry Aspin have also written on trialcourt retention elections exclusively in Hall & Aspin, What twenty years of judicial retention elections have told us  , 70 J UDICATURE . 340-347. (1987).16. Mark S. Hurwitz and Drew Noble Lanier,  Explaining Judicial Diversity: The Differential Ability of Women and Minorities to Attain Seats on State Supreme Court and Appellate Courts, 3 S T . P OL .  AND P OL ’  Y  Q. 329-352 (2003).17. Owen G. Abbe & Paul S. Herrnson, How  judicial election campaigns have changed  , 85 J UDICA  - TURE 286-295 (2002).18. Abbe and Herrnson can say almost nothingabout retention elections because the sample sizefor candidates who were up for retention was only six.19. Melinda Gann Hall. Competition as Account- ability  , in Streb, ed., supra  n. 3, at 166.20. John D. Griffin,  Electoral Competition and  Democratic Responsiveness: A Defense of the Marginal- ity Hypothesis  , 68 J. P OL . 911-921 (2006).21. Monica Bauer &. John Hibbing, Which Incumbents Lose in House Elections:A Response to  Jacobson’s ‘The Marginals Never Vanished, 33 A  M .P OL . S CI . R  EV  . 262 emphasis  in srcinal (1989).22. Roy B. Flemming & B. Dan Wood, The Pub- lic and the Supreme Court:Individual Justice Respon- siveness to AmericanPolicy Moods  , 41 A  M . J. P OL . S CI .468-498 (1997); Kevin T. McGuire & James A.Stimson, The Least Dangerous Branch Revisited: New  Evidence on Supreme Court Responsiveness to Public Preferences  66 J. P OL . 1018-1035 (2004); WilliamMishler & Reginald S. Sheehan, The Supreme Court as a Countermajoritarian Institution?The Impact of Public Opinion on Supreme Court Decisions  , 87 A  M .P OL . S CI . R  EV  . 87-101 (1993). William Mishler &Reginald S. Sheehan, Public Opinion, the Attitudi- nal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective, 58 J. P OL . 169-200(1996); James A. Stimson, Michael B. Mackuen, &Robert S. Erikson,  Dynamic Representation  , 89 A  M .P OL . S CI . R  EV  . 543-565 (1995).  www.ajs.org JUDICATURE 73 Second, simply because an incum-bent is unopposed or has run in anuncompetitive election does not mean that the person has ignoredpublic opinion. Congressional schol-ars have argued that incumbents are“unsafe at any margin;” in other words, elected officials may constantly  work to make voters happy so that they will not face a quality challengerin the future. 23  According to thesescholars, the threat of competitionensures accountability. Indeed, past research has demonstrated that  judges serving on state supremecourts who are subject to some formof election are less likely to overturnstate statutes. 24 Third, this definition does not take into account the “quality of accountability.” Take a hypotheticalexample where incumbent A receives 80 percent of the vote andincumbent B receives 55 percent. It  would appear that based on ourmeasure of accountability, incum-bent B would be held more account-able since she received a lesser shareof the vote. However, if the 80 per-cent who voted for incumbent A didso because they supported her rul-ings and the 45 percent of people who voted against incumbent B didso because they did not like hername, it is hard to argue that incum-bent B’s reelection illustrates moreaccountability than incumbent A’s.Incumbent A’s voters cast their bal-lots based on substantive informa-tion; incumbent B’s voters did not.Because of data limitations, thisarticle cannot test the “quality of accountability” argument. We can,however, test whether conditionsthat make accountability more likely (contested elections, competitiveelections, etc.) actually exist in inter-mediate appellate court elections. As Hall notes regarding the ideathat accountability is a product of electoral competition: Indeed, there is perhaps no betterdevice for forging linkages between cit-izens and government. Electoral com-petition enhances the ability of votersto voice disapproval of incumbents andremove unpopular ones, thereby bring-ing the judiciary better in line withcitizen preferences. Moreover, the com-parison serves to structure the decisionsof judges once on the bench when judges’ preferences are inconsistent  with those of their constituencies. 25 Furthermore, competitive judicialelections receive more media cover-age making it easier to hold incum-bents accountable. 26 To go back toour hypothetical example, it wouldbe more likely that voters in incum-bent B’s election would be able tobase their votes on substantive issuesthan voters in incumbent A’s elec-tion. 27 In sum, electoral competitionmay not be a prerequisite for account-ability, but the prospects for holding judges accountable are certainly enhanced by competitive elections. Data  We analyzed all 942 intermediateappellate court general elections heldfrom 2000-2006 (412 retention elec-tions, 389 partisan elections, and 141nonpartisan elections). 28 In addition, we compared those elections to allelections for the U.S. House of Repre-sentatives or state supreme courts dur-ing that time. For the partisan andnonpartisan contests featuring incum-bents, we coded whether the election was contested; if it was, we noted thepercentage of the vote the incumbent received and whether that incumbent  won or lost. We also coded contesta-tion rates for open seat races. For theretention elections, we coded whetherthe judge was retained and the per-centage of the people who voted toretain. All in all, this data provides us with a plethora of information about intermediate appellate court electionsand how they compare to other typesof elections regarding electoral con-testation and competition. 23. Thomas E. Mann. U NSAFE  A  T  A  NY  M  ARGIN :I NTERPRETING C ONGRESSIONAL E LECTIONS . (Wash-ington, D.C.: American Enterprise Institute,1978); See also, Richard F. Fenno, Jr., H OME S TYLE .(Boston: Little, Brown, 1978).24. Paul Brace, Melinda Gann Hall, & LauraLanger,  Judicial Choice and the Politics of Abortion: Institutional Choice and the Autonomy of Courts, 62 A  LB . L. R  EV  .1265-1302 (1999); Paul Brace,Melinda Gann Hall, & Laura Langer, Placing State Supreme Courts in State Politics,. 1 S T . P OL .  AND P OL ’  Y  . Q.81-108 (2001).25. Melinda Gann Hall, Competition as Account- ability, in Streb, ed., supra  n. 3, at 166.26. Brian F. Schaffner & Jennifer Segal Diascro, supra  n. 10.27. Still, we do not want to exaggerate thisclaim because much of the information votersreceived from the media regarding incumbent B’selection would be on the horserace. See  , Brian F.Schaffner & Jennifer Segal Diascro, supra  n. 10.28. This includes elections from 32 states: Alabama, Alaska, Arizona, Arkansas, California,Colorado, Florida, Georgia, Idaho, Illinois, Indi-ana, Iowa, Kansas, Kentucky, Louisiana, Maryland,Michigan, Minnesota, Mississippi, Missouri,Nebraska, New Mexico, North Carolina, Ohio,Oklahoma, Oregon, Pennsylvania, Tennessee,Texas, Utah, Washington, and Wisconsin. All data were compiled from the states’ secretary of stateor elections division web pages. Table 1: Incumbent contestation rates(as percentages) for the U.S. House of Repre-sentatives, state supreme courts, and inter-mediate appellate courts,2000-2006 House Supreme court Appellate courtIncumbents Incumbents Incumbentschallenged N  challenged N  challenged N  2000 84.5 401 65.8 38 23.9 1172001 - - 0 1 33.3 32002 79.5 391 76.0 25 32.6 892003 - - - - 40.0 52004 85.3 401 75.8 33 28.4 742005 - - 0 1 0 22006 86.1 402 50.0 38 23.3 120Total 83.9 1595 64.7 136 26.6 410  74 JUDICATURE  Volume 91, Number 2 September-October 2007 Contestation The aspect of intermediate appellatecourt elections that is unique whencompared to House and statesupreme court races is the numberof incumbents who run unopposed. 29 Table 1 presents the percentage of incumbents who faced an opponent from one of the two major parties forelections to the U.S. House of Repre-sentatives, state supreme courts, andintermediate appellate courts. 30  While many scholars and punditsbemoan the number of Houseincumbents who do not face compe-tition, 31 close to 84 percent had amajor party challenger from 2000-2006. This percentage has been rela-tively constant over a 25 yearperiod. 32 Furthermore, roughly two-thirds of all supreme court incum-bents had a major party opponent.Interestingly, while supreme court elections had seen a steady increasein contestation rates over the past 25 years, the 2006 supreme court con-testation rate (50 percent) was thelowest since 1986. 33 The intermediate appellate court elections tell a completely different story. Just as Senate races are morelikely to be contested than Houseraces, state supreme court races aremore likely to be contested thanintermediate appellate court races. While roughly two-thirds of supreme court justices are chal-lenged, more than two thirds of intermediate court judges are not  .Only 27 percent of intermediateappellate court judges faced a chal-lenger from 2000-2006. The yearly percentages do not deviate muchfrom the total percentage; in other words, we have not seen an increasein contestation in the past few elec-tion cycles.Table 2 paints a similar picture. It examines contestation rates by  whether the judge ran in a partisanor nonpartisan election. 34 Becausethey are supposed to be no different than elections for other offices, par-tisan judicial elections should pro-mote greater accountability than 29. Because of the large number of intermedi-ate appellate court elections in Texas, we wantedto be sure that the state did not influence theresults. For all of the following results, we alsoran tests where Texas was removed from theanalysis. The results did not change in any mean-ingful way.30. If an incumbent faced only a third party orindependent candidate, then that race was codedas being uncontested. Since the partisanship of the candidate was unknown in a nonpartisan race, we coded the race as being contested if two candi-dates ran for the seat.31. Juliet Eilperin, F IGHT C LUB P OLITICS :H OW P  ARISANSHIPIS P OISONINGTHE H OUSEOF R  EPRESEN - Table 2: Incumbent contestation rates (as percentages) for state supremecourts and intermediate appellate courts, by type of election system,2000-2006 Supreme court Appellate courtPartisan elections Nonpartisan elections Partisan elections Nonpartisan electionsIncumbents Incumbents Incumbents Incumbentschallenged N  challenged N  challenged N  challenged N  2000 66.8 16 63.6 22 28.7 87 10.0 302001 - - 0 1 - - 33.3 32002 90.0 10 66.7 15 33.9 62 29.6 272003 - - - - - - 40.0 52004 75.0 12 76.2 21 28.1 57 29.4 172005 - - 0 1 - - 0 22006 46.7 15 52.2 23 23.4 77 23.3 43Total 67.9 53 62.7 83 28.3 283 22.8 127   Table 3: Open seat contestation rates(as percentages) for the U.S. House ofRepresentatives, state supreme courts,and intermediate appellate courts,2000-2006 House Supreme court Appellate courtRaces challenged N  Races challenged N  Races challenged N  96.6 145 88.4 43 64.2 120   TATIVES . (Washington, D.C.: Rowan & LittlefieldPublishers, Inc., 2006); Morris P. Fiorina, Samuel J. Abrams, & Jeremy C. Pope, C ULTURE  W  AR  ?T HE M  YTHOFA  P OLARIZED  A  MERICA  .(New York: Pear-son-Longman, 2005).32. See, Melinda Gann Hall, Competition as Accountability, in Streb, ed., supra  n. 3.33. Melinda Gann Hall, Competition as Account- ability  , in Streb, ed., supra  n. 3.34. While appellate court general elections inMichigan and Ohio are technically nonpartisan,they are treated as partisan here since judicialcandidates in Michigan must be nominated at aparty convention and candidates in Ohio must beselected in a partisan primary.
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