As I’m sure my readers already know, Ohio elects all of its judges—from Municipal Court to the Ohio Supreme Court. Why? Our state constitution has required this since 1851. And all judicial terms are six years. Presently, the only requirement to become a judge is to have practiced law in Ohio for six years, and the meaning of “practice” has at times been quite liberally construed.
There is regular grumbling about electing judges, particularly in light of the unseemly amount of cash that now goes into judicial races. People tell me all the time they have no idea who they are voting for in many cases. And yet, people are also reluctant to give up the right to vote in any kind of election.
Like many states, Ohio has a number of quirks about its judicial elections. One of the quirkiest is Ohio has partisan primaries for judges, followed by non-partisan elections. The whole shooting match used to be partisan, but judicial general elections became non-partisan in Ohio in 1911. By law, all the non-partisan races come after all of the partisan races. So the judicial races are at the very end of the ballot. And they aren’t even first on the non-partisan ballot. They follow state school board elections. Why? Because the legislature passed a law setting the order of the non-partisan ballot. This has resulted in what is known as fall-off in the judicial races. Voters don’t bother going all the way to the end of the ballot especially when they don’t recognize any of the names. Studies have shown that as many as 25% of the voters just skip these elections.
Judicial elections used to be ho-hum affairs because judges aren’t supposed to say much except they will judge each case fairly and impartially. But due some U.S. Supreme Court decisions, that restriction has been loosened up.
Ohio’s late Chief Justice Thomas J. Moyer became increasingly troubled by judicial elections—particularly by the negative advertising and the huge amount of money involved. He favored merit selection, at least for appellate judges and supreme court justices, as an alternative way of choosing judges. Under that system, which was started in Missouri, and is used in a number of states, a lawyer is initially appointed to judicial office, then runs in a retention election, where there is no opponent, and voters decide whether or not to retain that person as a judge. Merit selection for Ohio has been floated a number of times in the past, always unsuccessfully. Moyer had planned to spend his time and focus in retirement on this issue, but died unexpectedly shortly before the end of his term.
Our present Chief Justice, Maureen O’Connor, is taking a different tack. She has abandoned the merit-selection alternative favored by her predecessor, because she thinks the voters don’t want it. Instead, at this year’s annual meeting of the Ohio State Bar Association, she made an eight-point proposal, formulated as a series of questions, that she suggests be aired in a series of discussions around the state, ultimately culminating in an action plan. Here are her questions, with a few thoughts of my own
- Should Ohio Change the Law So Judicial Races Are No Longer Listed at the End of the Ballot?
I think this is an excellent idea, and would require an amendment to the existing law. This should help with the fall-off problem.
2. Should All Judicial Elections Be Held in Odd-Numbered Years?
Judicial races are now held every year, so some (municipal court) are already in odd-numbered years. But common pleas, appellate, and supreme court judicial races are in even-numbered years, and must compete with elections for things like president, senator, governor, attorney general, and members of Congress. That contributes to the fall off problem. But I’m not sure this suggestion is a good idea. Wisconsin, which has such a system, is now one of the most contentious courts in the country. It’s almost as if this encourages too much attention, in a bad way.
3. Should Ohio Centralize & Expand Its Civic Education Programming and Institute a Judicial Voter Guide?
Absolutely. This one is a no-brainer. Arizona has an excellent model for this. And I applaud the Court for allowing cameras in the courtroom, including at the Ohio Supreme Court. It is amazing how much a voter can pick up simply by watching a proceeding.
4. Should Ohio Eliminate Party Affiliation on the Ballot in Judicial Primaries?
I think it is absolutely time to do this. It just no longer makes any sense. There is, however, a whole school of thought that favors making all judicial elections partisan, believing that the non-partisan ballot for judges is a fiction anyway, since most, if not all the candidates are endorsed by a political party, their names appear on the party’s sample ballot, and they receive money from political parties. Personally, I still favor the non-partisan judicial ballot.
5. Should Ohio Join the Other States that Have a Formal, Non-Partisan System for Recommending Nominees to the Governor to Fill Judicial Vacancies?
I think absolutely yes on this one. Former Governor Strickland used such a system, which I was privileged to chair for a couple of years. I think it encouraged outstanding lawyers to apply for judgeships who would not have ordinarily, and greatly increased diversity on the bench. I was proud to be a part of this.
6. Should Appointments to the Ohio Supreme Court Require the Advice and Consent of the Ohio Senate?
I don’t like this one at all. I think it is an unnecessary intrusion into the separation of powers. It is not at all like the federal system, where Senate confirmation is part of a lifetime appointment process. These state supreme court interim appointments are short, and the voters have a say quickly. From 1803-1851, judges were appointed by the General Assembly. Some very bad stuff (like impeaching judges or eliminating their jobs for declaring laws unconstitutional) happened during that time.
7. Should Ohio Increase the Basic Qualifications for Serving as a Judge?
I see no harm in requiring more experience at the appellate and Supreme Court level.
8. Should Ohio Increase the Length of Judges’ Terms?
I think this warrants a hard look. Wisconsin, for example, has just received a proposal for a single sixteen year term for Supreme Court justices. There’s good and bad here. The bad is there would be no way at all short of impeachment to get rid of a bad judge. And I would imagine that first election could be a killer, exacerbating the worst of what we already have. The good is such a system would insulate judges from political pressure and spending time on fund-raising for re-election. This one needs a lot of thought.
I hope all my readers will think about these things, and make their opinions known in any area meetings on this topic.