Choose Your Judges

Nevada Becomes the Latest Battleground in the Judicial Elections

February 20th, 2013

One of the most interesting “judicial elections” on state ballots this November does not involve any specific candidates: in Nevada, citizens are voting on a ballot measure that proposes to change the way judges are selected in the state. Currently, Nevada (along with 22 other states) holds contested elections to determine who gets to be a judge. Nevada Ballot Question #1 will ask voters whether they want to switch to a retention system, in which judges are appointed by the governor. (The governor in turn must choose from a small group of candidates who have been nominated by a neutral state bar commission). Under the proposed Nevada system, the newly appointed judges would serve out their term (a minimum of one year) and then stand for retention election, retaining their seats if they received approval from at least 55% of the electorate. (Why 55%? That seems to be a mystery. Illinois requires 60%, and almost every other state merely requires a simple majority).

Prior to the retention election, the same neutral state bar commission would evaluate the judges’ performances and release their findings to the public—but as we note elsewhere, those “evaluations” tend to be rubber stamps. For that matter, retention elections themselves usually resemble nothing more than expensive coronations, although this year conservatives in Iowa, Illinois, Kansas, and Colorado are hoping to change that trend.

The debate over how best to select judges has been going on for centuries, and recently former Supreme Court Justice Sandra Day O’Connor has launched an aggressive campaign against judicial elections. But Nevadans have already had two prior opportunities to switch to a retention system, in 1972 and 1988, and each time they have rejected the proposal. It looks like this time will be no different: a recent poll showed 54% opposed to the plan and only 27% in favor of it.

But the very fact that this issue is on the ballot provides some interesting evidence about who gains politically or economically from a switch away from contested elections. The politicians seem to like the idea: as a Constitutional amendment, the proposal had to be approved by a majority of both houses of the state legislature—in two separate sessions—before it was placed on the ballot. (It passed both houses in 2007 and 2009 by more than a 2-1 margin). The Nevada Chamber of Commerce and the AFL-CIO reached a rare consensus in endorsing the proposal. Even more telling is who is paying to finance the campaign to pass the proposal. A recent article tracks the $354,000 that has been raised so far in favor of the proposal: of the top eight donors, four are big law firms and the other four are big casino companies.

The financial support from large law firms—or from lawyers in general—is not too surprising. In contested elections, judicial candidates frequently solicit campaign contributions from the very lawyers who practice in front of them, setting up an appearance of impropriety as well as putting the lawyers in a very difficult spot. And the conventional wisdom—whether true or not—is that appointment and retention systems result in a higher quality bench than contested elections, so lawyers could conceivably be seeking to put better judges on the bench.

But why are the Vegas casinos donating tens of thousands of dollars to support this campaign? One might think the biggest industry in Nevada would prefer a system in which they could influence the composition of the bench with their deep pockets—if not by outright buying a judgeship, then at least by encouraging judges to rule in their favor in the hopes of getting a generous campaign donation at election time. A spokesperson for Wynn Resorts, which donated $30,000, said that the ballot measure “feels like the right thing for the people of Nevada,” but citizens can be forgiven for having suspicions when a large company donates money to a political cause merely for the good of the people.

Perhaps the biggest mystery of all: if big business, the chamber of commerce, the unions, and a supermajority of both houses of two sessions of the state legislature support the change to retention elections, why is the proposal trailing by twenty points in the polls? One reason is that it is an amendment to the state Constitution, which voters are understandably reluctant to approve unless there is some clear crisis that must be averted—which is not the case here. But most of those who oppose the change resent the fact that their “right to vote is being taken away”—an unappealing thought, especially in libertarian-leaning Nevada. Of course, many voters—in Nevada and elsewhere— leave the judicial portion of their ballots blank each November. Nevertheless, Nevada voters seem to believe that a fundamental right is at stake, however rarely exercised.

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