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States that elect judges are heir to a populist tradition dating back to the Jacksonian era. In the spectrum between independence and accountability, these states emphasize accountability. Systems vary from state to state, and even within states there may be geographic diversity or different selection systems for different levels of courts. Elections can be partisan or non-partisan, contested, or, as in merit-selection states, retention. Some states have dabbled in public financing of judicial elections. Reformers are most critical of contested partisan elections. Those are the elections where the most money is spent, the nastiest ads aired, and the dignity of the judicial office most often impugned. One factor that often goes unnoticed, perhaps because of its unquestioned status in a partisan election, is the ballot itself.

Critics of partisan judicial elections decry the very concept of attaching a party label to a judicial candidate. The argument certainly has its merits. However, even if a voter blindly checks the box for every Democrat (for example) on the ballot, at least he has to confront the name and notice that the candidate is running for a judgeship. Some sort of internal evaluation—perhaps memory recall of campaign literature or radio advertisements—remotely informs the choice. Nevertheless, in a few states, the voter need not even do that; he literally need only check a single box and be out of the voting booth in thirty seconds or less. Straight-ticket voting virtually nullifies the legitimacy of judicial selection in partisan election states. The low informational nature of these races makes straight-ticket voting attractive to the uninformed voter. Parties in states that allow the practice seize the opportunity to take advantage of the uninformed voter and urge the single checkmark.

Publication Citation

75 Alb. L. Rev. 1773-1797 (2012)