It seems incumbent judges are the only folks pleased with the status quo in Minnesota’s judicial election system. That’s because nearly 90% of them go into each election unchallenged, and an even higher percentage of those who are challenged win reelection.
There is a perennial effort afoot to amend the state constitution via a ballot initiative. A bill (HF 1666) authored by State Representative Michael Beard (R – 35A) would set the initiative in motion. If passed and affirmed by the voters, contested judicial elections would be replaced with a merit retention system. Instead of selecting between multiple candidates for a particular bench, future voters would decide whether or not to retain an incumbent judge. They would vote “yes” or “no” rather than for a particular candidate. Judges voted off the bench would be replaced by a gubernatorial appointment selected from a list of candidates provided by a merit selection commission. Incumbent judges would be evaluated by a performance commission and given a qualification rating provided to voters.
Opponents of merit retention as proposed in HF 1666 characterize it as taking away the people’s right to vote for judges. They highlight a number of obstacles to competitive contested judicial elections which, if removed, may encourage more attorneys to challenge incumbents. They point to highly contested open seats where many candidates have vied for the bench as evidence that there is ample interest among attorneys in a judgeship.
Debate on the issue has produced a hybrid proposal. Some ask why we can’t have retention elections for any judge who is not otherwise challenged, while simultaneously reforming ethics rules to make contested elections more competitive. Proponents of HF 1666 fear such a system may result in incumbent judges supplying their own faux challengers in order to avoid a retention election.
With all that background, here is a new proposal for your consideration. What about a process where voters have three choices – the incumbent, a challenger, and a gubernatorial appointment. Incumbents would not be able to avoid the retention election by recruiting their own opponent, and voters would still be able to organize “vote no” campaigns regardless of a challenger in the race.
Incumbents would have to get a percentage of the vote greater than the other two categories combined in order to keep their seat. For example, if the votes against the incumbent were split 26% for the challenger and 25% for an appointment, the incumbent would lose and the challenger would become the new judge. Likewise, if the vote was split 25% for the challenger and 26% for an appointment, the incumbent would lose and the governor would appoint a candidate supplied by a merit selection commission. Regardless, the onus would always be on incumbents to perform in a manner agreeable to the people.
This is an off-the-cuff idea which could benefit from the harshest possible scrutiny. So critique away. What do you think?
The proceeding was part of a weekly newsletter from Minnesota’s North Star Tea Party Patriots, The Patriot’s Perspective. Check out the rest of the issue and subscribe for free here.