Michael E

Michael E. Solimine, Independence, Accountability, and the Case for State Judicial Elections.
ELECTION LAW JOURNAL, Volume 9, Number 3 (2010).
Note: Solimine’s article is a book review of: Chris W. Bonneau and Melinda Gann Hall, In
Defense of Judicial Elections. New York and London: Routledge (2009).
Section 1 – Introduction
Central theme: relationship between elections and judicial accountability and independence.
Solimine’s interpretation of Bonneau and Hall’s argument: “Voters are, in various ways, more
engaged with judicial elections than is usually thought, and that this is a good thing, since state
judges are political actors who should be accountable like any other public official.”
Solimine notes that the book has received a fair amount of public criticism for the argument that
elections are the best way to ensure judicial accountability.
Bonneau and Hall’s two principal goals of their book: (i) to bring empirical evidence, much of it
generated by themselves, to a wider audience (they see the evidence as demonstrating that the
public is more fully engaged in state supreme court elections than originally thought); and (ii) to
argue that contested elections for state judges are appropriate and efficient ways to make judges
accountable for their actions, and superior to alternatives such as putatively merit-based
Solimine’s opinion: Bonneau and Hall succeed on their first goal but fall short on their second
Section 2 – Judicial Elections: Empirical And Normative Dimensions
Solimine’s introductory comment: “For many decades, as [Bonneau and Hall] observe,
luminaries in legal circles have argued against state judicial elections, on the basis that they
undermine the necessary independence of judges in a system of separated powers. Likewise,
these critics often argue, elections are poor vehicles to hold judges accountable, because they are
almost always characterized by low information, low turnout, and other maladies.”
Bonneau and Hall rely on data from state supreme court elections from all fifty states from the
years 1990-2004. Within this data, they then focus on several benchmarks (see below) regarding
the efficacy of judicial elections.
 Roll-off: when persons vote for other candidates or issues on the ballot, but then do not
vote for judicial candidates at all.
o Primary sources of roll-off: disinterest and lack of knowledge of the electorate in
judicial elections.
o Roll-off in judicial elections has been a historical problem; Bonneau and Hall’s
data shows an average roll-off in judicial elections of 23%.
 Solimine notes, however, that roll-off tends to significantly decrease in
more contested and competitive elections.
o Republican Party of Minnesota v. White (where United States Supreme Court
loosened restraints on candidate speech during state judicial campaigns) –
Bonneau and Hall believe that the decision has had little effect on voter
participation in judicial elections.
 Solimine notes, however, that other studies suggest that partisan races with
low roll-off may still decrease public confidence and respect for the
o Voter mobilization to remedy roll-off in judicial elections:
 Increase campaign spending and thus the dissemination of information to
the electorate.
 Problem: there is no “scientific” or “real world” evidence that increased
campaign spending and political ads actually change the public’s
perception of the judiciary.
 Quality of Candidates: measured by law schools attended, prior experience as a judge,
and other factors.
o Bonneau and Hall conclude that voters distinguish between candidates on these
grounds and generally opt for more qualified candidates.
Various reforms advanced to change state judicial elections (Bonneau and Hall’s arguments
against them and in favor of partisan elections):
 (i) switching from partisan to nonpartisan elections (eliminates the party label on the
 (ii) adopting the Missouri Plan (eliminates competitive races in lieu of post-appointment
retention elections and decreases voter participation and knowledge)
 (iii) merit selection plans (characterized by intense partisanship, cronyism, and elitism)
Section 3 – The Prospects For And Limits Of Defending Judicial Elections
This section is devoted to Solimine’s criticism of Bonneau and Hall’s empirical study.
Problem #1: The study is limited entirely to state supreme court elections; no data on state trial
and appellate court elections.
 Solimine: “Overwhelming evidence demonstrates that lower court elections in all states
are marked, with very few exceptions, by low turnout, high roll-off, and robust reelection
rates for incumbents, especially given that most incumbents (in those states with
putatively contested elections) run unopposed.” (i.e., Cuyahoga County)
Problem #2: Solimine disagrees with Bonneau and Hall’s contention that voters in state supreme
court elections are actually making informed choices.
 Solimine: this contention can only be inferred since Bonneau and Hall did not directly
survey voters.
 Solimine also points to studies showing that voters rely heavily on party affiliation,
incumbency, and name recognition.
Problem #3: Impact of campaign contributions on how judges render decisions  Bonneau and
Hall fail to address this issue.
 Solimine points to studies suggesting that judges do favor attorneys and other public
interest groups that have contributed to their campaigns.
Problem #4: Voter juxtaposition.
 On the one hand, “voters often report in polls that they view contentious judicial
campaigns and partisan elections as lowering the perceived fairness and legitimacy of
state courts.” On the other hand, “polls sometimes show that voters, while concerned
about fair courts, also want to retain election systems, and referenda to replace elections
with variants of the Missouri Plan have been voted down.”
o Solimine’s contention: voter juxtaposition is the result of the public having
inconsistent and/or incomplete information about the candidates. (i.e., perfect
reason for creating a Qualifications Committee)
Section 4 – Conclusion: What Is To Be Done?
Solimine’s conclusion: The status quo will hold. The Missouri Plan or other forms of meritbased selection will not replace partisan and nonpartisan elections for state court judges.
 Reason: “Powerful interest groups have a stake in the current system. Consider the major
political parties, which see judges and their staffs as sources of patronage; and groups
such as local prosecutors, from whose ranks judges are often drawn, and who support the
‘law-and-order’ campaigns of judges; and, perhaps surprisingly, many judges (especially
in the lower courts) themselves, who attained and often retained their jobs under the
current system.”
Solimine predicts that only incremental changes will happen – e.g., tinkering with recusal
standards; production of voter guides prior to elections; adoption of some form quasi-merit
selection to fill judicial vacancies (i.e., our ad hoc Qualifications Committee); ceasing publicly
financed judicial races.
Ultimately, the goal must be to improve meaningful voter participation in state judicial elections.
There will not be a national solution; experimentation at the state level (i.e., a Qualifications
Committee) will, in reality, be the only way to improve the current system.