Judicial elections — once known as a “sleepy affair” across the nation — have started resembling highly partisan political campaigns as big money and special-interest influence have begun creeping into races in a handful of states.
And, Minnesota’s judicial system, several experts and advocates say, is in danger of falling victim to that nationwide trend.
They cite such examples as a 2011 state Supreme Court election in Wisconsin that served as a surrogate battle over the fate of Gov. Scott Walker’s anti-union legislation. Outside groups spent roughly $4.5 million in the process.
In West Virginia in 2004, a coal mining company’s CEO spent more than $3 million to help a Republican judicial candidate unseat the Democratic incumbent. The switch resulted in a favorable ruling for the coal mining company when the new judge became the key swing vote in a 2007 appeal that overturned $50 million in damages it owed.
“Judges and the justice system depend on the confidence of the public and their integrity,” said former Minnesota Supreme Court Chief Justice Eric Magnuson, adding that if people believe they can buy results, that trust crumbles.
“If that perception is out there, you’ve done tremendous damage to the justice system.”
As part of our Effective Democracy series, MinnPost recently reported on concerns about judicial elections and candidate selection.
Worrisome court decision
Many judicial observers have offered doomsday predictions in Minnesota since at least 2005. After years of legal wrangling, an appeals court — building on a previous U.S. Supreme Court decision — ultimately ruled that Minnesota couldn’t prohibit judicial candidates from seeking campaign funds and couldn’t limit candidates’ “partisan political activities.”
Activists, such as the Coalition for Impartial Justice in Minnesota, that are working for what they call an “impartial” court system say that court ruling will eventually draw huge campaign contributions into state judicial races and allow special interests to, in effect, buy court decisions.
Other states, such as Iowa, use a different model to select and retain judges that advocates in Minnesota are pushing in order to keep undue influence out of the judicial system. That method, though, hasn’t been without controversy.
The Minnesota coalition, which spans the spectrum from business groups to labor unions, has been working to reform the state’s judicial system for years. Campaign Director Ryan Kelly said that his group, although unsuccessful so far, plans to push hard for necessary changes next session.
“Once the first million-dollar court race hits in Minnesota, it’s game over,” Kelly said in a recent interview with MinnPost. “Pandora’s box has been opened.”
The Wisconsin Supreme Court hasn’t been the most popular — or well-functioning — group of impartial officials in recent years.
Ed Fallone, a Democrat who unsuccessfully challenged incumbent Justice Pat Roggensack last spring, based a large part of his candidacy on “dysfunctional” court activity. The elections, which are technically nonpartisan, proved to be down and dirty political affairs.
In addition to the millions of dollars that have been pouring into Wisconsin judicial races over the last few years, gridlock and charges of partisanship and misconduct have plagued the Supreme Court.
“The elections have really changed in tenor in just the last five or 10 years,” Barry Burden, a political science professor at the University of Wisconsin-Madison, told MinnPost.
“People are also pretty unhappy with how the court is operating,” Burden added. “They’re not happy with the elections.”
After 35 outside groups representing business, labor and many other special interests spent $4.5 million to influence a 2011 state Supreme Court election between incumbent Justice David Prosser and Assistant Attorney General JoAnne Kloppenburg, a high-profile battle over Walker’s anti-collective bargaining legislation took place in the court.
The heated debate over the legislation led to allegations that Prosser aggressively put his hands around a female justice’s neck in June 2011.
“Wisconsin is a state that traditionally is proud of the government,” Fallone told Stateline in April, speaking more generally about the court’s shortcomings as he saw them. “People in Wisconsin don’t want to see that in their government; they certainly don’t want to see that in the court.”
Two reform measures have emerged as potential fixes for the Wisconsin court’s woes.
As in Minnesota, activists have argued for “merit selection” and retention elections, where a group of qualified professionals would select a slate of candidates for the governor to appoint.
After the governor appointed a judge, the candidate would undergo retention elections, and the public would have the opportunity to vote on whether they thought the judge did a satisfactory job.
If the public lost confidence in a judge and voted out the candidate, the governor would appoint a qualified replacement from a group of choices reviewed by the selection commission.
So far, as in Minnesota, that measure hasn’t made much headway. Two-thirds of states and the District of Columbia use some form of merit selection, according to the American Judicature Society.
The State Bar of Wisconsin more recently has been pushing a proposal that would keep Supreme Court elections but limit justices to one 16-year term. That way, judges would never face voters again, Burden said, insulating them from campaign contributions and public opinion.
The Wisconsin Supreme Court currently has seven justices who serve staggered 10-year terms.
“I don’t know where that will go,” Burden said. “It’s just something that’s being talked about.”
Iowa has been using merit selection and retention elections for decades, but the method doesn’t appear to be a cure-all for controversy. Minnesota has a form of merit selection in practice but doesn’t rely on retention elections to keep or remove judges.
In 2010, Iowa voters removed three state Supreme Court justices who voted to permit same-sex marriage. It was the first time that the public had ousted members of the state’s highest court, and the campaign against the three judges was largely financed by national groups opposed to gay marriage, the New York Times reported.
Kelly, with Minnesota’s Coalition for Impartial Justice, called Iowa an “interesting case study” for merit selection and retention elections. He also argued that the governor appointed three equally qualified candidates to replace the judges that the voters removed.
“It was fair, balanced,” he added, although admitting: “It’s not the perfect solution.”
Changing Minnesota’s system
The coalition is working to put in place a system like Iowa’s, but it’s unclear whether the organization will have the political strength necessary to make the change.
Kelly said it’s important to educate the public about the value of an impartial judiciary in keeping its highly regarded court system.
Hey and such other supporters as Magnuson also push back against criticisms from people like judicial challenger Greg Wersal, instrumental in the 2005 Minnesota case, who argue that judicial candidates should be able to engage in partisan political activities.
They also will have to overcome skepticism that a selection commission could become rife with corruption and not permit the best candidates to move forward.
“It’s the height of cynicism for people to say some small powerful group will take over and load the deck,” Magnuson said. “It hasn’t been the experience in Minnesota, and I don’t think the citizens would be up for it.”
Such advocates as the coalition say the warning signs of drastic change in Minnesota’s judicial system are there.
“This is the most politically volatile and back-and-forth times in Minnesota that we’ve seen in the past several decades, and all the ingredients are ripe for this to happen,” Kelly said.
Effective Democracy is a year-long series of occasional reports supported by the Chicago-based Joyce Foundation, as part of a grant made to MinnPost and the Wisconsin Center for Investigative Journalism.