Election 2012: The losers lost big and what the losses portend for 2013/2014

The 2012 election saw several attempts to “rein in” or otherwise assert control of the judiciary by the other branches of government. The four key amendments on the ballot not only all failed,  but failed in stunning fashion when compared to both other items on the ballot and historically.

Arizona Proposition 115 failed 27%-73%

The amendment had a variety of pieces: increased terms and mandatory retirement age, giving governor more power over the state’s merit selection commissions and requiring the commissions give governors more names to pick from, etc. What makes the Prop 115 loss even more interesting is that it was the single biggest loss among the 9 propositions on the ballot that night: the other losing propositions had closer tallies. It also failed to take a single county (closest was Apache where it got 32% of the vote: 6,976 to 14,835).

Proposition % yes
115 27
120 32
121 33
204 36
116 44
208 51
117 57
119 62
114 80

Florida Amendment 5 failed 37%-63%

Like Arizona it was an effort to tinker with the state’s merit selection system (plus rule making authority of the state supreme court) and touted as a way to “rein in judges”. Like Arizona it not only lost outright, but was the worst performer of the night in the state. It was able to carry in a single county: Sumter voted for it 52-48 (27,763 vs. 25,969).

Amendment % yes
5 37
3 42
12 42
4 43
6 45
8 45
10 45
1 49
11 61
9 62
2 63
There was no Amendment 7 n/a

Missouri Constitutional Amendment 3 failed 24%-76%

Amendment 3, like the Arizona and Florida efforts, would have given governors more power over the merit selection process, in Missouri’s case by giving effective control of the merit selection commission for the state’s appellate courts to the governor.  Proponents announced months ago they were abandoning the effort when they failed to get the ballot language they wanted, but have vowed to come back and try again, this time perhaps via a citizen’s initiative rather than a legislatively referred ballot item. Like the Arizona and Florida losses, Missouri’s Amendment 3 was the worst performer of election night ballot items in the state.

Amendment/Proposition % yes
Amend 3 24
Prop B 49
Prop E 62
Prop A 64

New Hampshire’s Question 2 failed 49-51%

Question 2 would have given the legislature a veto over rules established by the state’s supreme court.  The loss is remarkable for two reasons. First, despite the closeness of a 49-51% vote total, Question 2 was nowhere close the 67% needed for passage, making this effectively a blowout.  Second, and perhaps even more surprising, was the history of failures on this item. An amendment almost identical to 2012’s Question 2 was offered in 2002 and 63% of the vote in favor, only losing because of the need to meet the 67% threshold. When it was put back on the ballot in 2004 it again got a majority (57%) but not the super-majority need. That this time the proposal failed to garner even a simple majority was surprising and, coupled with GOP loss of the New Hampshire House, indicates little chance of a return in 2013/2014.

Ohio’s Issue 2 lost 37%-63%

The amendment dealt would have created an independent redistricting commission and assigned Court of Appeals judges, picked by the Chief Justice, to vet proposed members of the commission. It lost every county in the state (except Athens). Although 19 states do provide for some involvement of judges in redrawing maps (other than hearing appeals or legal challenges from maps once created), the Ohio lopsided loss may caution against similar proposals. Moreover, the recent use of such a provision in Missouri’s constitution (map drawn by panel of appellate judges if legislature cannot come up with map) lead to proposals in that state to remove the map-by-judges provision of that state’s constitution.

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