Litigation

A New Strategy for Judicial Election Reform

By Peter Hardin

Two legal scholars, saying that “judicial elections are here to stay,” are laying out a case for incremental rather than sweeping reform.

Incremental change offers a more realistic option for reform in an era when state courts have been inundated with campaign cash and voters nonetheless have consistently rejected proposals to eliminate judicial elections and switch to appointive systems, the authors suggest. Specifically, they urged a new legal strategy to impose limits on spending in judicial elections.

Erwin Chemerinsky (photo), dean of the law school at the University of California, Irvine, and James J. Sample, an associate professor of law at Hofstra University, give their analysis in a New York Times op-ed that is headlined, “You Get the Judges You Pay For.” Chemerinsky, a preeminent expert in constitutional law, is author of seven books, including “The Conservative Assault on the Constitution.”

Before suggesting reforms, the scholars point to both history and the jurisprudence. They also highlight polls showing that more than seven of 10 voters “believe campaign cash influences judicial decisions,” and that almost half of state court judges agree.

They  emphasize skyrocketing campaign funding in state high court elections and the “extraordinary comparative power” of deep-pocketed “super spender” interest groups, documented by a report last year called ?The New Politics of Judicial Elections 2000-2009: Decade of Change.? Its co-authors included Sample and the Justice at Stake Campaign.

The op-ed touches on landmark U.S. Supreme Court rulings in Caperton v. Massey and Citizens United v. FEC, then rolls out the authors’ primary proposal, to impose limits on spending in judicial races: “States with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected.”

Despite Supreme Court precedent barring limits on an individual’s spending to get a legislative or executive candidate elected, the authors suggest a different legal basis could apply to judicial candidates, as “large expenditures to get a candidate elected to the bench undermine both the appearance and reality of impartial justice.” Their hope:

“Thus, the Supreme Court should hold that the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.”

Election law scholar Rick Hasen comments in his Election Law blog:

“I have a hard time believing that the current Supreme Court would be open to an argument for spending limits in judicial elections. In Citizens United, Justice at Stake made an excellent pitch in an amicus brief for the Court to leave the constitutionality of spending limits open in judicial elections, especially given Caperton. Justice Kennedy didn’t bite then, even writing an unconvincing attempt to distinguish Caperton in CU, and I’m skeptical about whether he’d ever entertain the argument.”

Full post as published by The Gavel on April 18, 2011 (boomark / email).