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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

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Election of State Court Judges: The Ohio Experience

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August 17, 2004

The most recent two elections of judges to the Ohio Supreme Court have been hotly contested. Parties interested in tort reform — trial lawyers, doctors, insurance companies, labor, and industry — have poured money into the races. A local newspaper estimates that more money was spent in the last Ohio judicial elections than on all the other contemporaneous state judicial elections combined.

The intensity of judicial elections has made for some embarrassing moments. One successful candidate, for example, thanked supporting doctors with a statement that it would "payoff." Robed candidates populate television spots, asking for votes and sailing as close to the wind as possible to the prohibition of making promises of results. It has also put the judiciary under a public microscope. One political gadfly, for example, now carefully scrutinizes all judges' expense accounts vouchers and sues whenever a charge appears to be unwarranted.

Ohio politicians have become increasingly uncomfortable with the exposure of judicial appointments to the rough-and-tumble vagaries of electoral politics. Ohio lawyers have become increasingly uncomfortable with an awakening public wondering whether judges are for hire. All of this is leading to a renewed examination of whether judicial elections are optimal.

Ohio's experience with judicial selections has been a rich and varied one. The original Ohio State Constitution of 1802 provided for the appointment of judges by a "joint ballot of both houses of the General Assembly." In the early nineteenth century, the legislature routinely made appointments based on patronage and, occasionally, appointed or even impeached judges based on specific doctrinal views. In 1806, for example, the General Assembly impeached two judges for holding a state statute unconstitutional. The State Senate acquitted them by a one-vote majority. In 1810, the General Assembly swept all state judges from office by resolution and appointed new ones of more agreeable dispositions.

By 1850 the people of Ohio had had enough and the 1850 Constitutional Convention produced a new state constitution that provided for the election of all Ohio judges. The principle has survived in all subsequent constitutional conventions and amendments.

Ironically, the last time a resolution made the ballot in Ohio to amend the constitution to stop the popular election of judges, a referendum that failed in the 1980s, the motivating arguments were the reverse of today's complaints. Proponents of the amendment claimed, in essence, that judicial elections were too low profile, not too high profile.

The public, the argument went, was largely uninformed. Incumbents usually won against nominal opponents. Many voters just skipped the judicial section of the ballot altogether. In those few contested races over open seats the results could be pre-ordained; a well-known incumbent would resign mid-term and run for the open seat. The governor then filled the open mid-term seat with a party loyalist. The low public interest and participation in the elections encouraged the questionable practice.

How times have changed. From claims that judicial elections get too little attention we have migrated to claims that they get too much attention.