Wednesday, October 21, 2015

One (or two, depending on how you count) moment of sanity does not change the fact that judicial elections are a bad idea.

I strongly believe that electing judges is a very bad idea. See e.g., here and hereOver at Slate, Robert J. Smith has an article about how two justices on the Kansas Supreme Court survived an attempt by death penalty proponents (including the Sam Brownback the Governor of Kansas and a dark money group called Kansans for Justice) angered by the Kansas Supreme Court's overturning of the death sentences of two men who committed a series of grisly crimes in Wichita, Kansas. Mr. Smith's main point in his article is that the election results show that people in Kansas do not fully support the death penalty.  But if one look at the election results, one sees that the justices barely won and the vote was much closer than typical Kansas Supreme Court retention elections. 

First, let's look at the two justices mentioned in Mr. Smith's article, Justice Eric Rosen and Justice Lee Johnson. In the 2014 election Mr. Smith discusses, 52.7% of Kansas voters voted to retain Justice Rosen and 52.6% of Kansas voters voted to retain Justice Johnson.  For both justices a swing of 20,513 votes (20,079 for Justice Johnson) would resulted in the justices losing their seats. Compare those results to the 2008 election (judges in Kansas are subject to retention elections every 6 years).  In 2008 69.9% of voters chose to retain Justice Rosen and 70.02% of voters chose to retain Justice Johnson.  In 2008, a swing of more than 195,898 votes would have been needed to alter the result for Justice Rosen and a 197,249 vote swing would have been needed for Justice Johnson.  Only about 10% of the votes needed to swing the 2008 election would have been needed to swing the 2014 election. That is a remarkable change.

Were the 2008 election results atypical? No. The earliest election results that I could easily link to was 1998. That year, Justice Bob Abbott was retained with 70.9% of the vote.  In 2000, Justices Robert Davis and Donald Allegrucci were retained with 75,4% and 74.5% of the vote, respectively. In 2002, Justice Kay McFarland received the support of 77.6% of voters in her retention election. In 2004, Justice Carol Beier received 76.4 % of the vote and Justice Lawton Nuss received 75.6% of the vote in their retention elections.  In 2006, Justice Davis  was retained again with 67.5% of the vote.  We've already covered how the 2008 retention elections went. In 2010, the vote percentages got a little lower with Justice Beier getting the support of 63.2% of the voters. Justice Nuss received 62.5% of the vote. Justice Marla Luckert received 62.7% of the vote.  But the percentages were back up in 2012, when 70.9% of voters favored retaining Justice Nancy Moritz.

I suppose an optimist would say the campaigns to unseat Justice Rosen and Justice Johnson failed and that failure suggests voters understand that voting against a justice (or judge) based on a single case result is a bad idea. But it was a close election and I do not find that particularly comforting.

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