8 states continue to have partisan elections for their top courts; a look at legislative efforts to move to nonpartisan

With the expecting signing this week of a bill to transition West Virginia judicial races from partisan to nonpartisan, the number of states with partisan judicial races for their courts of last resort (usually called supreme court) will decrease down to 8. A look at those 8 and the efforts to move to nonpartisan races is below. Please note that in some cases alternative proposals, such as a move to merit/commission selection, have also been introduced and drawn much of the legislative focus and interest. This looks exclusively at the proposals to keep judicial elections but make them nonpartisan.

Alabama Supreme Court

After the most expensive judicial race in Alabama history, a race the winner and former Chief Justice Sue Bell Cobb indicated made her “ashamed by what I had to do” there was for the first time in decades an interest in moving the state’s elections from partisan to nonpartisan. That said, the only effort that even made it to a committee hearing was a 2008 bill that would have covered not only appellate races but the state’s two main trial courts (Circuit and District). It was rejected in committee.

  • HB 474 of 2007 All appellate judges plus Circuit and District Court. No hearings, died in committee.
  • HB 169 of 2008 All appellate judges. No hearings, died in committee.
  • HB 170 of 2008 All appellate judges. No hearings, died in committee.
  • HB 444 of 2008 All appellate judges plus Circuit and District Court. Killed by House Committee on the Constitution and Elections 5/6/08.
  • SB 137 of 2008 All appellate judges. No hearings, died in committee.
  • SB 144 of 2008 All appellate judges. No hearings, died in committee.
  • HB 126 of 2009 All appellate judges. No hearings, died in committee.
  • HB 127 of 2009 All appellate judges. No hearings, died in committee.
  • HB 548 of 2009 All appellate judges plus Circuit and District Court. No hearings, died in committee.
  • HB 542 of 2010 All appellate judges. No hearings, died in committee.
  • HB 202 of 2012 All appellate judges plus Attorney General. No hearings, died in committee.

Illinois Supreme Court

Illinois has a two-method election process for all three courts in the state (Supreme, Appellate, Circuit): judges must win their initial term in elections but obtain additional terms via winning by at least 60% yes/no retention elections. (Ill. Con. Art. VI, Sec. 12) State law mandates these initial term elections be partisan (10 ILCS 5/7-1). While there have been efforts to simply do away with the elections outright and move to a merit/commission system, there’s been no effort to move to nonpartisan elections.

Louisiana Supreme Court

Louisiana uses a blanket primary system: all candidates for the same elected office, regardless of respective political party, run against each other at once. There does not appear to have been any bill introduced in the last two decades to change this system to a nonpartisan one for the state’s supreme court.

Michigan Supreme Court

Although the state’s constitution (Art. VI, Sec. 12) provides

The supreme court shall consist of seven justices elected at non-partisan elections as provided by law

the justices are nonetheless nominated by party conventions (MCL 168.392)

At its fall state convention, each political party may nominate the number of candidates for the office of justice of the supreme court as are to be elected at the next ensuing general election.

A package of bills (SB 1296, SB 1297, SB 1298, SB 1299, and SB 1300 of 2010) was introduced to repeal MCL 168.392 and other statutes and replace party conventions with nonpartisan primary elections. None of the bills were brought to a hearing.

New Mexico Supreme Court

New Mexico uses a unique three-step process for its appellate courts under its constitution (Art. VI, Sec. 33)

  1. For initial terms all judicial vacancies are filled by the governor from a list of candidates recommended by a judicial nominating commission.
  2. The political parties then conduct primaries to pick candidates to face off against the appointee at the next general election. The governor’s appointee is not guaranteed to win that primary.
  3. Whoever wins the partisan general election can obtain additional terms through yes/no retention elections, but there they must obtain at least a 57% yes vote (the original 1988 constitutional amendment made it a simple majority; a 1994 amendment raised it).

Only one effort has been introduced in the last two decades to move from partisan to nonpartisan: HJR 11 of 2015. That bill was initially set for a hearing on Saturday, March 7 but was withdrawn from the committee agenda.

Ohio Supreme Court

Like Michigan, Ohio has nominally nonpartisan races at the general election, however judges must first square off in partisan primaries (ORC 3513.08). The idea of ending these partisan primary elections was at one point in 2014 part of Chief Justice Maureen O’Connor’s plan to change the state’s judicial election system, but was eventually dropped. In any event, there had been no legislation apparently introduced in the last two decades to move away from the practice of partisan primaries for the Ohio Supreme Court to nonpartisan ones.

Pennsylvania Supreme Court

Pennsylvania functions much like Illinois: judges must win their initial term in elections but obtain additional terms via winning yes/no retention elections. Although the state’s constitution requires elections for these initial terms to the Supreme Court (Art. V, Sec. 13) it is a statute that requires they be partisan (25 P.S. § 2872.1)

Candidates for nomination of offices as listed below shall present a nominating petition containing at least as many valid signatures of registered and enrolled members of the proper party as listed below:

(8) Justice of the Supreme Court: One thousand including at least one hundred from each of at least five counties.

While there have been efforts to simply do away with the elections outright and move to a merit/commission system, there’s been no effort to move to nonpartisan elections.

Texas (Supreme Court & Court of Criminal Appeals)

Texas has two courts of last resort, both of which are required to be elected (Art. V, Secs. 2 & 4) but it is a series of statutes that requires these be partisan races. Efforts to end these and move to nonpartisan races have gone effectively nowhere.

  • HB 2422 of 1993 All judges except municipal and constitutional county. No hearings, died in committee.
  • HB 1182 of 1995 All appellate courts. Hearing before a subcommittee of the House Judicial Affairs Committee 3/28/95. Died in subcommittee.
  • HB 10 of 1999 Supreme Court and Court of Criminal Appeals. Also including public financing of these races. Hearing before House Judicial Affairs Committee 4/26/99. Died in committee.
  • HB 346 of 1999 All appellate courts. Hearing before House Judicial Affairs Committee 4/26/99. Died in committee.
  • HB 4 of 2001 Supreme Court and Court of Criminal Appeals. Also including public financing of these races. Hearing before House Judicial Affairs Committee 2/26/01. Died in committee.
  • HB 1582 of 2003 Supreme Court and Court of Criminal Appeals. Also including public financing of these races. Hearing before House Judicial Affairs Committee 4/23/03. Died in committee.
  • HB 3280 of 2003 All appellate courts. No hearings, died in committee.
  • SB 207 of 2003 All appellate courts. No hearings, died in committee.
  • HB 2506 of 2014 Ends all partisan primaries. No hearings, died in committee.