Alexander Vanderklipp is a Senior Fellow at Election Reformers Network, where he contributes to projects on impartial election administration, independent redistricting, and election dispute resolution. He is the author of the recent policy brief, “Why do we elect judges? Wisconsin’s highly partisan race begs the question.”
The nation is watching Wisconsin as a state Supreme Court race with major implications for democratic outcomes—at both state and national levels—becomes an all-out spending war on behalf of the liberal and conservative candidates. No one expects the record-breaking spending or heated partisan rhetoric to die down until the race in this crucial swing state is decided.
Yet while coverage of this race makes clear the public distaste for the polarization of an ostensibly nonpartisan position, few articles have been written about the systems in play that have driven up the stakes and rhetoric to a once-unimaginable degree. The framing should not be “which candidate will come out on top” but “why do we elect judges in the first place?”
It may come as a surprise that many states do not elect Supreme Court justices at all, but instead use a process called “merit selection” by a judicial nominating commission to pick impartial judges for the high court. These commissions, when structured properly, represent the viewpoints of a diverse group of stakeholders from across a state who are all equally incentivized to pick candidates with a track record of impartiality. When no one group, person, or party can be in control of the process, members are more motivated to find consensus.
This model has several benefits. Applicants for judgeships can rely on their experience and background, rather than rhetoric, funding, or political connections, to be considered for a judicial position. And court rulings will be more likely to be accepted by all sides and viewed with finality, rather than as one side’s victory the other side will organize to counter and overturn (as we have seen recently with the newly-composed North Carolina Supreme Court reconsidering recent decisions on Voter ID and redistricting).
The merit selection process also avoids many of the pitfalls of judicial elections, such as low-information or low-turnout races, which force judges to appeal to the extremes, and conflicts of interest, which inevitably arise when elected judges take campaign contributions or make decisions on tight election outcomes.
A 2016 study found that elected judges’ “decisions are systematically biased by … campaign finance and re-election influences to help their party’s candidates win office and favor their party’s interests in election disputes.” Research also shows that in nonpartisan judicial races, candidates must take more extreme positions to “signal” their true preferences to voters. Not only that, but interest group funding and dark money have increased sharply over the last two decades, and now dominate judicial campaigns.
So rather than dealing with the myriad problems presented by judicial elections, Wisconsin should switch to a merit selection model to tamp down polarization in such a sharply divided state. Of course, for this to happen, many pieces will have to fall into place.
For starters, both parties will have to recognize the mutually assured destruction of all-out campaign warfare over the institution intended to preserve justice and the rule of law. Even then, a constitutional amendment would have to pass the legislature in two consecutive sessions to make it onto the ballot for voter approval in a referendum election—which would also attract dark money from groups opposed to fairness.
But difficult reforms are still worth pursuing, and not only in Wisconsin. Montana, Michigan, Texas, Illinois, and many other states still elect judges despite evidence that this method does not promote fairness. Momentum for changing this flawed process begins with a reframing of the issue in the press, research, and everyday conversation. Not “who do we elect,” but “why would we elect them when a better model exists?”